2020Do7307 A. Fraud

B. Violation of the Certified Judicial Scriveners Act

Defendant 1 and one other

Defendants

Attorney Doh-man et al.

Suwon District Court Decision 20196277 Decided May 25, 2020

October 15, 2020

The judgment of the court below is reversed, and the case is remanded to Suwon District Court.

1. Judgment on the grounds of appeal

A. As to the Defendants’ non-existence of a violation of the Certified Judicial Scriveners Act

1) A certified judicial scrivener under Article 21(2) of the Certified Judicial Scriveners Act lends his/her certificate of registration to a certified judicial scrivener with the knowledge that other person is trying to engage in a certified judicial scrivener by using the certificate of registration for a certified judicial scrivener (see Supreme Court Decision 2002Do1226, May 10, 2002). Here, “a certified judicial scrivener” means not only lending the name of a certified judicial scrivener but also lending the same name as that of a certified judicial scrivener himself/herself after borrowing the name of a certified judicial scrivener, but also lending the certificate of registration for a certified judicial scrivener to a certified judicial scrivener (see Supreme Court Decision 2006Do2518, Dec. 7, 2006).

Furthermore, if an employee of a certified judicial scrivener office handles and manages the relevant affairs in the name of a certified judicial scrivener without actually under the direction and supervision of a certified judicial scrivener, not only the entire affairs but also affairs of a certain portion, even if the certified judicial scrivener performs normal activities concerning the remaining affairs, the violation of Article 72(1) of the Certified Judicial Scriveners Act may be established against the employee and the certified judicial scrivener.

2) On the grounds indicated in its reasoning, the lower court maintained the first instance judgment that determined that Defendant 2 lent the registration certificate of a certified judicial scrivener from January 2014 to April 9, 2018, and Defendant 1 performed the duties of a certified judicial scrivener on his/her account by lending the registration certificate of a certified judicial scrivener from Defendant 2 to Defendant 2, and that Defendant 1 performed the duties of a certified judicial scrivener on his/her account.

3) Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the establishment of an unspecified charge of facts charged and a crime of violating the Certifie

B. As to Defendant 1’s remaining grounds of appeal

The argument that there was an error of mistake of facts in the determination of sentencing by the lower court constitutes an allegation of unfair sentencing. However, under Article 383 Subparag. 4 of the Criminal Procedure Act, an appeal on the ground of unfair sentencing is allowed only in a case where death penalty, life imprisonment, or imprisonment with or without labor for not less than ten years is imposed. In this case where Defendant 1 was sentenced to more minor punishment, the argument that the sentence is too unreasonable does not constitute a legitimate ground for appeal.

2. Ex officio determination on the collection portion

A. Article 72(2) of the Certified Judicial Scriveners Act (amended by Act No. 15151, Dec. 12, 2017; hereinafter referred to as the “Certified Judicial Scriveners Act”) provides that money and valuables or other benefits acquired by a certified judicial scrivener who newly established Article 72(2) and lends his/her certificate of registration to another person, or by a person who borrows his/her certificate of registration of a certified judicial scrivener shall be confiscated, and if it is impossible to confiscate it, the equivalent amount shall be collected. Article 2 of the Addenda provides that “The amended provisions of Article 72(2) shall apply to cases where the first lease of the certificate of registration of a certified judicial scrivener after

In light of the principle of prohibition of retroactive effect of penal provisions under Article 72(2) of the amended Certified Judicial Scriveners Act, Article 2 of the Addenda, Article 13(1) of the Constitution, and Article 1(1) of the Criminal Act, where a certified judicial scrivener lends his/her registration certificate to another person, or where a certified judicial scrivener has continued prior to the enforcement of the amended Certified Judicial Scriveners Act, only money and valuables and other profits acquired by his/her act after the amended Certified Judicial Scriveners Act enters into force shall be confiscated or collected.

shall be deemed to be a case.

B. Pursuant to Article 72(2) of the amended Certified Judicial Scriveners Act, the first instance court found Defendant 2 guilty of violating the Certified Judicial Scriveners Act, and, from January 2014 to April 9, 2018, collected KRW 41,538,100, which Defendant 2 acquired from the above crime from Defendant 2, and Defendant 1’s profit 1,243,071,374, respectively, from Defendant 1 and the lower court maintained it as it is. However, since the charged facts of this case include a crime before December 12, 2017, which is prior to the enforcement of the amended Certified Judicial Scriveners Act, the lower court is not able to collect penalty under Article 72(2) of the amended Certified Judicial Scriveners Act with respect to the benefit of the whole period stated in the charged facts, and should have deliberated on and determined whether the amount of penalty is to be collected or not to be collected under other Acts and subordinate statutes.

D. Nevertheless, the lower court erred by misapprehending the legal doctrine regarding the scope of application under Article 72(2) of the amended Certified Judicial Scriveners Act, which additionally collected from the Defendants pursuant to Article 72(2) of the Certified Judicial Scriveners Act, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Supreme Court Decision 201

Justices Kim Jae-in

(1) The chief of the Supreme Court;