[1] Whether each crime of violation of Article 109, Item 1 of the Attorney-at-Law Act committed by a person who is not an attorney-at-law dealing with legal affairs concerning each other's legal cases with different contents of the parties constitutes substantive concurrent crimes (affirmative in principle)

[2] The standard for determining whether an attorney-at-law committed a violation of Article 109 subparagraph 2 of the Attorney-at-Law Act by allowing the staff of a legal office established under his/her name to use his/her name, and whether an attorney-at-law committed a violation of Article 109 subparagraph 1 of the Attorney-at-Law Act

[1] An attorney-at-law who receives or promises to receive money, valuables, entertainment or other benefits, or who provides or promises to provide such things to a third party, in return for dealing with legal cases such as appraisal, representation, arbitration, settlement, solicitation, legal consultation, preparation of legal documents, and other legal affairs, or providing legal affairs concerning legal cases whose contents conflict with the parties in a violation of Article 109 subparagraph 1 of the Attorney-at-law Act as a separate act. Thus, each crime committed by a person who is not an attorney-at-law by dealing with legal affairs concerning different legal cases is not a comprehensive crime, unless there are special circumstances.

[2] In order to determine whether an attorney-at-law violated Article 109 subparag. 2 of the Attorney-at-law Act by allowing an attorney-at-law to use his/her name (referring to "non-at-law"; hereinafter the same shall apply) and the office staff to deal with legal affairs under the name of the attorney-at-law, and thereby doing a violation under Article 109 subparag. 1 of the Attorney-at-law Act, the following should be reviewed: (a) the overall process from the first case of the legal case handled to the final process; (b) the type and content of the legal case; (c) the nature of the legal case; (d) the level of legal knowledge necessary for the legal affairs; (e) the content, method, and frequency of the attorney-at-law's involvement in the process of establishing the office and operating the office; and (e) the subject and method of managing the employees' employment and the income of the office; and (e) the personal relationship between the attorney-at-law and the staff; and (e)

[1] Article 109 subparag. 1 of the Attorney-at-Law Act, Article 37 of the Criminal Act / [2] Article 34(3) and Article 109 subparag. 1 and 2 of the Attorney-at-Law Act

[1] Supreme Court Decision 99Do2724 delivered on September 3, 1999, Supreme Court Decision 2000Do3072 Delivered on August 18, 2000

Defendant 1 and one other

Prosecutor

Law Firm CSS, Attorneys Jeon Young-young

Suwon District Court Decision 2010No3972 decided September 29, 2011

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

The grounds of appeal are examined.

1. As to the ground of appeal on Defendant 1’s acquittal

A. An attorney-at-law who receives or promises to receive money, valuables, entertainment or other benefits, or who provides or promises to provide such things to a third party, shall be provided with legal services concerning legal cases, such as appraisal, representation, arbitration, settlement, solicitation, legal consultation, preparation of legal documents, and other legal services, or providing legal services concerning legal cases that conflict with the parties in a violation of subparagraph 1 of Article 109 of the Attorney-at-Law Act as a separate act. Thus, each offense committed by a person who is not an attorney-at-law (hereinafter referred to as "non-law") against the Attorney-at-law Act committed by dealing with legal services concerning each of the other legal cases shall not be a comprehensive crime, unless there are any special circumstances (see Supreme Court Decision 200Do3072, Aug. 18, 200).

B. Of the facts charged in this case, the court below affirmed the judgment of the court of first instance which held that, as stated in the corresponding column Nos. 1 through No. 2163 of the annexed Table 2 of the judgment of the court of first instance from October 1, 2007 to April 1, 2009, Defendant 1 received all 2163 legal services and received 629,736,959 won in return for the handling of legal services and received 629,736,959 won in return for the handling of these services, Defendant 1 committed a violation of the Attorney-at-Law Act by providing legal services to the above Defendant, since the Suwon District Court's branch branch support was issued on April 1, 2009 and became final and conclusive on April 1, 2009, it shall be acquitted on the grounds that the above summary order affects the above facts charged.

C. However, in accordance with the foregoing legal doctrine, it is difficult to accept such determination by the lower court.

The record reveals that the part of the facts charged or the legal case dealt with by Defendant 1 included in the facts charged in the above summary order is different from each other. Nevertheless, the lower court, without examining at all any special circumstances to deem the handling of legal affairs pertaining to these legal cases as a blanket crime, concluded each act as a blanket crime, and determined that the res judicata effect of the above summary order also extends to the part of the facts charged.

In this judgment of the court below, there is an error of law that affected the conclusion of the judgment by misunderstanding the legal principles on the criteria for the distinction between inclusive crime and concurrent crime in violation of Article 109 subparagraph 1 of the Attorney-at-Law Act.

2. As to the part on Defendant 2 and the ground of appeal on Defendant 1’s acquittal

A. The summary of the facts charged in this part of the charges is as follows: ① Defendant 1 accepted 387 legal services from April 2, 2009 to May 22, 2009 and received 97,48,194 won in return for handling 387 legal services as shown in [Attachment 1] of the first instance judgment from around April 2, 2009 and received 387,440,000 won from around July 1, 2008 to around May 22, 2009; ② Defendant 2, an attorney-at-law, handled legal services using his own name from around October 1, 2007 to around June 30, 2008; and ② Defendant 2, an attorney-at-law, handled 310,000 won in the name of △△△, 310 and 25,000 in the name of the attorney-at-law from around July 1, 2008 to May 21, 2015.

B. In order to determine whether an attorney-at-law committed a violation under Article 109 subparag. 2 of the Attorney-at-law Act by allowing the staff of a law office (referring to “non-legal representative; hereinafter the same shall apply) established in his/her name to use his/her name, and whether the staff of a law office violates Article 109 subparag. 1 of the Attorney-at-law Act by dealing with legal affairs under the name of the attorney-at-law, it should be examined whether the staff of a law office has dealt with legal affairs without actually under the direction and supervision of the attorney-at-law, by taking into account various circumstances such as the overall process from the first acceptance of the law office to the final handling of the legal office, the type and content of the legal case, the nature of the legal affairs, the level of legal knowledge necessary for legal consultation and the preparation of legal documents, and the contents, methods and frequency of the attorney-at-law’s involvement in the process of the establishment of the office, and the subject and method of management of the staff’s employment and the revenue of the office

C. The lower court determined that it is difficult to readily conclude that the instant legal office was operated with Defendant 1’s responsibility and account in view of the following: (a) the earnings from the instant legal office were used for Defendant 2; (b) Defendant 2 invested personal funds for the operation of the instant legal office; (c) Defendant 1 led Defendant 2 to the prosecution on March 24, 2009; (d) Defendant 1 led Defendant 1 to a violation of the Attorney-at-Law Act; (b) Defendant 2 did not have any sufficient credibility in such confession; and (c) Defendant 2 did not appear to have been given money in return for the name lending; and (d) it was difficult to find that the instant legal office was operated with Defendant 1’s responsibility and account, without the involvement of the attorney-at-law in external activities, such as the management of local districts for the departure of National Assembly members; and (e) Defendant 2 did not directly perform the legal office and supervision of the law office; and (e) did not instruct and supervise all other Defendants 1 and 2 of the principal legal office without the direction and supervision of the instant case.

D. However, in light of the above legal principles, the above determination by the court below is difficult to accept in light of the following circumstances or various circumstances revealed by the evidence duly adopted and examined by the court below and the court of first instance.

(1) Defendant 2 attempted to go out to the special election for the National Assembly members set forth in the Hanam City in 2002, but failed to go out in 17th election for the National Assembly members of the Republic of Korea in 2004. After that, Defendant 2 opened the law office of this case and employed Defendant 1 as a secretary and a staff member of the law office of this case in order to enhance the level of his designation and to provide legal services to the voters in preparing for the election. However, Defendant 2 only stayed in the law office of this case, and Defendant 1 was in full charge of the operation of the law office of this case and the process of this case, such as the delegation of the law office of this case, the receipt and disbursement of revenue and expenditure, and the management of employees, and Defendant 2 seems to have not been involved in this case beyond the overall scope of understanding by Defendant 1 about some matters, such as the number of acceptance of the operation of the law office of this case, and employment of employees.

Although there were approximately KRW 600,000 or more gross income in the instant legal office during the period charged, it appears that Defendant 1 paid expenses, such as wages, to the employees of the instant legal office, and most of the remaining amounts would have been brought about. On the other hand, the lower court’s determination that Defendant 2 was brought about from the revenue of the instant legal office is nothing more than the amount of the said total revenue. In addition, the lower court’s determination that Defendant 2 was brought about for the operation of the instant legal office is more than the amount of the instant legal office, regardless of the name indicated in the material, there is doubt as to whether the said Defendant was actually paid or deposited in the said legal office, and whether the said amount was actually deposited for the operation of the instant legal office solely based on the volume and degree of the aforementioned Defendant 2’s involvement. Rather, it appears that Defendant 1 managed various accounts in the name of Defendant 2, etc., and the entire amount deposited in the name of Defendant 2 is a relatively small amount.

In full view of the above various circumstances, the operation of the legal office of this case is likely to have been conducted under the responsibility and accounting of Defendant 1, not Defendant 2.

(2) The lower court rejected the credibility of Defendant 1’s confession statement made by the said Defendant at the prosecutor’s office on March 24, 2009, on the ground that “the possibility that Defendant 1 made a false statement in order to conceal the fact that he embezzled the revenue of the instant legal office.” However, Defendant 1 specifically stated the circumstances leading to the use of the name at the time of making a statement by the prosecutor’s office on March 24, 2009, or whether the type of operation and profit distribution of the instant office was made using only the attorney’s name. In addition, even at the time of the investigation by the said prosecutor’s office, Defendant 1 was aware that the act of having another person use his name for a long time at the time of his investigation by the said prosecutor’s office was illegal, and Defendant 2 was well aware of the fact that Defendant 1 had tried to leave his National Assembly member for a period of time until April 2008 and was planning to leave the National Assembly member in the future. Considering these various circumstances, it is difficult to readily understand that Defendant 1 led to commit a crime of violating the Attorney Act.

(3) According to the reasoning of the judgment below, Defendant 2 tried to maintain a law office by dealing with registration affairs which may be directly handled by employees, including the management of local districts for the departure of National Assembly members, and simple tasks such as the preparation of a simple complaint or various applications by proxy. Accordingly, the case requested by the law office of this case was sent to the law office to which Defendant 2 belongs and other attorneys-at-law handled the case. However, as seen above, Defendant 1 did appear in the list 1 and 2 of the crime scene, from October 1, 2007 to May 22, 2009, he did not appear in the opinion of the law office of this case, written answers, written statements, payment orders, application form, provisional attachment or temporary disposition, application form, family register-related application, cancellation or cancellation, preparation of documents related to the family register, etc., and did not participate in the case at least 2 and 50 of each case, even if he did not have any specific direction or guidance on the case.

Nevertheless, based on such factual basis, the lower court determined to the effect that “Defendant 2 was directed and supervised Defendant 1 by Defendant 1’s attending the legal office of this case intermittently and receiving work reports from Defendant 1 and participating in the employment of employees.” However, solely on the grounds stated in its reasoning, it seems insufficient to evaluate that Defendant 2 was responsible for handling legal affairs of each legal case accepted by the legal office of this case on Defendant 2’s own responsibility and directed and supervised Defendant 1.

E. In full view of the aforementioned circumstances, Defendant 2 appears to have been engaged in the operation of the law office of this case for the purpose of enhancing one’s own name while emphasizing the external activities such as election campaign, etc., and even if Defendant 2 was partially involved in the operation of the law office of this case, it is merely to ascertain whether the law office of this case is being operated in conformity with its purpose from the standpoint of allowing the use of the name, and it is not to participate in the acceptance and handling of individual legal cases, and even if part of the revenue was used by Defendant 2, it is only possible to regard it as a condition or consideration for the provision of the name. Thus, it is difficult to deem that the handling of legal affairs regarding each of the legal cases listed in the facts charged of this case was conducted under the responsibility and calculation of Defendant 1, a non-legal lawyer without actually directing and supervising Defendant 2, an attorney-at-law.

Nevertheless, the lower court, solely on the grounds stated in its reasoning, acquitted the Defendants on this part of the charges. In so determining, the lower court erred by misapprehending the legal doctrine on the interpretation of Article 109 subparag. 1 and subparag. 2 of the Attorney-at-Law Act, or by failing to exhaust all necessary

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.

Justices Lee Sang-hoon (Presiding Justice)