The effects of acting for the chairman of the Attorney Disciplinary Committee by designation of the Minister of Justice

When the Ministry of Justice has dealt with objections against disciplinary decisions made by the Attorney Disciplinary Committee of the Korean Bar Association, the Minister of Justice, the chairperson of the Ministry of Justice, designated a Vice Minister of Justice as the chairperson's representative and had him/her act on behalf of the chairperson due to unavoidable accidents in the performance of his/her duties.

Articles 75(2) and 82 of the Attorney-at-Law Act, Article 5 of the Public Prosecutor Disciplinary Action Act

[Plaintiff-Appellee] 83Du4 dated May 23, 1984 (Gong1984, 1193)

[Judgment of the court below]

The Attorney Disciplinary Committee of the Ministry of Justice (No. 1, 1994) dated March 7, 1994

The reappeal is dismissed.

The grounds of reappeal are examined.

1. According to the records, when the head of the Seoul Bar Association requests the Investigation Committee, which is an agency to which he belongs, to investigate the facts of the instant disciplinary action against the re-appellant, the investigation committee is proceeding as prescribed in Article 13 of the Seoul Bar Association Investigation Committee's Regulation, and instead, requiring the re-appellant to attend the investigation date and make statements and submit evidential materials, etc., requested the re-appellant to cooperate with the re-appellant by sending a written questioning about the facts of suspicion of disciplinary action to him within a reasonable period. The re-appellant's refusal of the investigation is immediately terminated and the request for commencement of disciplinary action is reported to the head of the Korean Bar Association. Accordingly, the attorney disciplinary committee of the Korean Bar Association requested the commencement of disciplinary action to the head of the Korean Bar Association and again requested the commencement of the disciplinary action to the head of the Korean Bar Association, opened the date for deliberation of the disciplinary action against the re-appellant (as of September 10, 1993 and December 15, 199).

The purport of Article 13 of the Rules of the Investigation Committee of the Seoul Local Bar Association, which stipulates that when making a decision that it is reasonable to apply for the commencement of disciplinary action against a discipline accused person, a discipline accused person shall be present on the date of investigation and give him/her an opportunity to make statements and present evidentiary materials, etc. is to give him/her an opportunity to explain in advance in order to secure the legality and fairness of a disciplinary action to be taken according to the above request for the commencement of disciplinary action, and to guarantee his/her right to defense against him/her. Even though the above investigation committee violated the procedure, if a discipline accused person was present directly on the date of deliberation by the Korean Bar Association Disciplinary Committee, which is the procedure following the request for the commencement of disciplinary action, and sufficiently vindicates him/her, if he/she appeared, then the above procedural defect should be deemed cured. Accordingly, the disciplinary action in this case is no error

The decision of the Attorney Disciplinary Committee of the Ministry of Justice rendered to the same purport is justifiable, and there is no error in the misapprehension of legal principles, so this ground of reappeal cannot be accepted.

2. Examining the reasons for the decision of the Attorney Disciplinary Committee of the Ministry of Justice in light of the relevant statutes and the records, the recognition and decision of the disciplinary committee, which held that the re-appellant violated Article 17 (3) of the Attorney-at-Law Act by establishing and operating two law offices, shall be deemed to be justifiable. There is no error of law such as misunderstanding of facts or misunderstanding of legal principles as pointed out in the grounds for reappeal,

In addition, the grounds for re-appeal are that the establishment of a joint law office is grounds for disciplinary action under Article 38 (1) of the Attorney-at-Law Act that allows a law firm to open a branch and that it is illegal against the principle of equality under the Constitution. However, the joint law office mentioned above seems to refer to a joint law office of notary public established under Article 48-2 of the Attorney-at-Law Act. Even according to the records of this case, there is no evidence to deem that the re-appellant established a joint law office of notary public. Thus, the above grounds for re-appeal cannot be accepted without further review.

3. Article 75 (2) of the Attorney-at-Law Act provides that the Minister of Justice shall be the chairperson of the Attorney-at-Law Disciplinary Committee, and Article 82 of the same Act provides that the Public Prosecutor Disciplinary Committee shall apply mutatis mutandis to disciplinary actions against lawyers except as otherwise provided for in this Act. Meanwhile, Article 5 of the Public Prosecutor Disciplinary Committee Act provides that the chairperson of the Public Prosecutor Disciplinary Committee established within the Ministry of Justice shall be the same as the Minister of Justice, but a member

According to the relevant legal provisions, when the Attorney Disciplinary Committee of the Ministry of Justice deals with a case of raising an objection against a disciplinary decision made by the Korean Bar Association disciplinary committee of the re-appellant, the Minister of Justice, the chairperson of the Ministry of Justice, as the chairperson, has designated Kim Jong-young as the chairperson's representative and had him act on behalf of the chairperson (see Supreme Court Order 83Du4, May 23, 1984). Therefore, the grounds for reappealing the Ministry of Justice's decision that the decision made by the Attorney Disciplinary Committee of the Ministry of Justice as invalid cannot be accepted, on the ground that there is no legal basis for acting on behalf of the chairperson.

4. Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-chul (Presiding Justice)