[1] The meaning of "other legal affairs" under Article 109 subparagraph 1 of the Attorney-at-Law Act, and whether it constitutes an act related to the act in addition to the act of generating, altering, extinguishing, preserving, and clarifying the direct legal effects (affirmative)

[2] In a case where a person, other than an attorney-at-law, obtains economic benefits in return for a legal service in return for compensation for actual expenses, whether it constitutes a violation of the Attorney-at-Law Act (affirmative)

[1] Article 109 Subparag. 1 of the Attorney-at-Law Act provides for penal provisions concerning the act of conducting legal affairs in relation to a litigation case, etc. The above provision is a type of legal affairs prohibited, and the comprehensive phrase “other legal affairs” is defined as “other legal affairs” after consulting the appraisal, representation, arbitration, reconciliation, solicitation, legal consultation, preparation of legal documents. The phrase “other legal affairs” under the above provision refers to the processing of matters that cause, modify, or extinguish legal effects and the processing of matters that preserve or clarify legal effects. The acts related to the above acts also constitute “other legal affairs.”

[2] Article 109 Subparag. 1 of the Attorney-at-Law Act provides for penalties in relation to the conduct of legal affairs by a person, other than an attorney-at-law, who receives or promises to receive money, valuables, entertainment or other benefits. However, if the actual expenses related to legal affairs are paid, it shall not be deemed that a person, other than an attorney-at-law, has received or promised to receive benefits. However, since the legislative purpose of the above Article is to prohibit a person, the above provision is to prevent a person, other than an attorney-at-law, from providing legal affairs with compensation, it shall be deemed that he/she has acquired economic benefits in return for legal affairs in consideration of the details, details and scale of the legal affairs, and the process of receiving benefits. Even if the number of benefits takes the form of compensating for actual expenses, the act of receiving or providing legal services constitutes a violation of the Attorney-at-Law Act even if the expenses are paid for the crime of violating the Attorney-at-Law Act.

[1] Article 109 subparagraph 1 of the Attorney-at-Law Act / [2] Article 109 subparagraph 1 of the Attorney-at-Law Act

[1] Supreme Court Decision 2009Do4482 Decided October 15, 2009, Supreme Court Decision 2010Do387 Decided October 14, 2010 (Gong2010Ha, 2120) / [2] Supreme Court Decision 2008Do1655 Decided April 11, 2008 (Gong2008Ha, 1573) Decided October 9, 2008

Defendant

Prosecutor

Incheon District Court Decision 2011No3973, 2014No576 Decided November 7, 2014

The part of the judgment of the court below, excluding the part of the violation of the Attorney-at-Law against Non-Indicted 1, shall be reversed, and that part of the case shall be remanded

The grounds of appeal are examined.

1. Whether acts of fact-finding and acts of collecting data fall under legal affairs;

A. The lower court determined that the Defendant’s act of investigating facts and the act of collecting data does not constitute “appraisal” or “agent” as provided by Article 109 subparag. 1 of the Attorney-at-Law Act, and that the Defendant’s act of receiving expenses from clients while conducting fact-finding and collecting data does not constitute a violation of the Attorney-at-Law Act

B. Article 109 Subparag. 1 of the Attorney-at-Law Act provides for penal provisions concerning the conduct of legal affairs in relation to litigation cases, etc.; the above Article provides comprehensive phrase, “other legal affairs,” which is the type of the prohibited legal affairs, including appraisal, representation, arbitration, reconciliation, solicitation, legal consultation, preparation of legal documents, and after which the preparation of other legal documents.” The term “other legal affairs” under the above provision refers to the processing of matters that generate, modify, or extinguish legal effects and the processing of matters that preserve or clarify legal effects. The acts related to the above acts also constitute “other legal affairs” (see Supreme Court Decision 2009Do4482, Oct. 15, 2009, etc.).

C. Examining the following facts revealed by the reasoning and evidence of the lower judgment in light of the aforementioned legal doctrine, the Defendant’s factual fact-finding and the act of collecting data constitutes an act related to the generation, modification, extinguishment, preservation, and clarification of legal effects, and therefore, the said act constitutes “other legal affairs” as stipulated in Article 109 subparag. 1 of the Attorney-at-Law Act.

1) When the defendant was requested by the clients of this case, the clients of the civil case and the criminal case are pending or the investigation by the investigative agency was being conducted.

2) The purpose of the service contract concluded by the Defendant with the client is to research and investigate the substantive truth of the requested case and whether there is a problem in the investigation agency’s investigation.

3) According to the above service contract, the Defendant found related persons in relation to a lawsuit or an investigation in progress, which was pending at the time, and recorded the statement, and took charge of investigating facts, such as taking charge of recording of the contents of the recording, and collecting data.

D. Nevertheless, the lower court determined that the Defendant’s act of investigating facts and collecting data did not constitute “appraisal” or “agent” under Article 109 subparag. 1 of the Attorney-at-Law Act, and determined immediately that the Defendant’s act did not constitute a violation of the Attorney-at-Law Act without examining whether the said act constitutes “other legal affairs”. In so determining, the lower court erred by misapprehending the legal doctrine on the interpretation of “other legal affairs” under Article 109 subparag. 1 of the Attorney-at-Law Act, which led to the failure

2. Whether the defendant has acquired economic benefits exceeding compensation for actual expenses;

A. The court below determined that the Defendant’s act did not constitute a violation of the Attorney-at-Law Act, inasmuch as there is no evidence to deem that the Defendant acquired more economic benefits than compensation for actual expenses, although the Defendant’s act of preparing the grounds of appeal, etc., advisory act on the grounds of appeal, and soliciting withdrawal of a complaint constitutes “agent” among the types of legal affairs stipulated in Article

B. Article 109 Subparag. 1 of the Attorney-at-Law Act provides for penalties in relation to the conduct of legal affairs by a person, other than an attorney-at-law, who receives or promises to receive money, valuables, entertainment or other benefits. However, if the defendant simply receives or promises actual expenses related to legal affairs, the defendant cannot be deemed to have received or received benefits under the above provision (see, e.g., Supreme Court Decision 2008Do1655, Apr. 11, 2008). However, the above provision has its legislative purpose to prohibit a person, other than an attorney-at-law, from providing legal affairs at a cost. In light of various circumstances, where it can be deemed that the defendant acquired economic benefits in return for legal affairs by ice compensation for actual expenses, even if the defendant takes the form of compensating for actual expenses, such act of receiving or providing legal services should be deemed to constitute a violation of the Attorney-at-Law Act. Even if the defendant partly paid expenses, if the defendant's payment of expenses is merely a violation of the Attorney-at-Law Act, then the remainder of 20080.

C. Examining the following circumstances revealed by the reasoning of the lower judgment and evidence in light of the aforementioned legal doctrine, the Defendant may be deemed to have given and received benefits from the clients in return for legal affairs in the presence of compensating for actual expenses, and the cost incurred by the Defendant is merely the cost paid for the commission of the crime, and the Defendant may regard the entire benefit that the Defendant received from the clients as compensation

1) The Defendant, while operating the “○○○ Criminal Research Institute” in which his name was included, entered into a service contract with the instant clients. The Defendant and the clients came to know each other at the time of the conclusion of the above service contract, and there is no obvious motive for the Defendant to conduct fact-finding, etc. on behalf of the clients even though the Defendant did not have economic benefits.

2) Nonindicted 2, 3, 4, and 5, the clients of this case claimed that the Defendant paid KRW 17 million, KRW 14 million, KRW 1.8 million, KRW 18 million, KRW 13 million, and KRW 13 million, respectively, to the Defendant. The Defendant asserted in the lower court that the cost of recording for the clients was required for Nonindicted 2 to Nonindicted 3, KRW 25.2 million, KRW 6 million to Nonindicted 4, and KRW 17.2 million to Nonindicted 5, KRW 5.2 million, and KRW 1.2 million to the Defendant. As seen earlier, the instant service agreement was aimed at investigating whether there was a problem in the substance of facts related to the pending litigation or investigation, which were in progress, and even if there were some items related to the recording, it is difficult to view that the Defendant arbitrarily prepared the recording of the Defendant’s statement by consultation with the clients, other than those that were not related to the recording, and that there was a need for the Defendant to prepare the recording of this case’s statement to the clients or to receive it.

3) In addition, the Defendant asserts that other expenses have been paid in addition to the recording, but the expenses claimed by the Defendant include multiple items that are difficult to consider as actual expenses incurred in fact-finding, such as the drug value, letter-post rates, door-to-door expenses, engine error replacement expenses, automobile exchange expenses, vehicle insurance premiums, office rents, and electricity and water supply charges.

D. Nevertheless, the lower court did not err by misapprehending the legal doctrine on the interpretation of “money, valuables, entertainment or other benefit” as prescribed by Article 109 subparag. 1 of the Attorney-at-Law Act, in so determining, that there is no evidence to deem otherwise that the Defendant acquired economic benefits in excess of reimbursement

3. Scope of reversal

The facts charged of violating the Attorney-at-Law Act are an inclusive crime by each client. The first instance court convicted all of the clients of Nonindicted 2, 4, and 5, acquitted all of the clients on the part on Nonindicted 1, and acquitted part on the part on Nonindicted 3, and acquitted part on the part on the part on Nonindicted 3. The Defendant and the prosecutor appealed on each of the guilty and acquitted part on the part on the charge. The lower court reversed the part on conviction in the judgment of the first instance while dismissing the prosecutor’s appeal and acquitted all of the convictions in the judgment of the first instance, and the prosecutor appealed only on the part on which the first instance judgment was reversed and acquitted. Of the judgment of the lower court, the part on Nonindicted 2, 4, and 5, and the part on which the prosecutor appealed on the part on Nonindicted 3 among the part on the part on the part on the part on Nonindicted 3,

4. Conclusion

Therefore, the part of the judgment of the court below excluding the part of the violation of the Attorney-at-Law against Non-Indicted 1 is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices

Justices Min Il-young (Presiding Justice)