[1] Whether "legal counseling" under Article 109 subparagraph 1 of the Attorney-at-Law Act includes offering advice or information on substantive and procedural matters related to legal disputes, or offering advice or assistance on legal and factual matters necessary for resolution thereof (affirmative)

[2] Whether the "counseling about the acquisition of property in an auction case" under Article 2 (1) 5 and 7 of the Certified Judicial Scriveners Act and the affairs incidental thereto include the analysis of rights, the investigation of status or public records, etc., presentation of proper purchase price, provision of information, etc. (affirmative)

[3] The validity of a contract, the purpose of which is to violate Article 109 subparagraph 1 of the Attorney-at-Law Act and Article 3 (1) and Article 74 (1) subparagraph 1 of the Certified Judicial Scriveners Act (negative)

[1] Article 3 of the Attorney-at-Law Act provides that "general legal affairs" shall be one of the duties of an attorney-at-law, and Article 109 subparagraph 1 of the Attorney-at-Law Act provides that a person who is not an attorney-at-law shall be punished in cases where he/she

In light of the purport of Article 109 subparagraph 1 of the Attorney-at-Law Act that prohibits a person, other than an attorney-at-law, from participating in the handling of legal affairs, the "legal counseling" under the above Article includes offering advice or information on substantive and procedural matters related to legal disputes or offering advice or assistance on legal and factual matters necessary for the resolution thereof.

In addition, “legal affairs” referred to in Article 1 of the same Act means the processing of matters that generate, modify, or extinguish legal effects and the processing of matters that preserve or clarify legal effects. This includes the so-called “rights analysis affairs” that analyze the acquisition, loss, modification, conflict, friendly relationship, etc. of rights corresponding to the legal effects of the rights relationship listed in the real estate rights relationship or the registration record of real estate, and includes the analysis of the rights to real estate subject to auction, with the content of presenting necessary materials for real estate subject to auction, and verifying and explaining the relevant rights relationship, transaction restrictions, etc., and providing information and advice on the economic value thereof.

[2] Article 2(1)5 and 7 of the Certified Judicial Scriveners Act provides that the affairs incidental to the affairs of a certified judicial scrivener, such as consultation on the acquisition of property in an auction case under the Civil Execution Act, and consultation and consultation necessary therefor, shall be one of the affairs of a certified judicial scrivener. Article 3(1) provides that a person who is not a certified judicial scrivener shall not engage in business under Article 2, and Article 74(1)1 provides that a person who violates Article 3 shall be punished.

In light of the purport of Articles 3(1) and 74(1)1 of the Certified Judicial Scriveners Act that a person, who is not a certified judicial scrivener, intends to maintain the certified judicial scrivener system by prohibiting his/her business from running, etc., he/she may be deemed to include the “consultation on the acquisition of property in an auction case” and affairs incidental thereto under Article 2(1)5 and 7 of the Certified Judicial Scriveners Act, including the analysis of rights, the investigation of status or public books, etc., presentation of proper purchase price, provision of information, etc.

[3] Article 109 subparag. 1 of the Attorney-at-Law Act and Articles 3(1) and 74(1)1 of the Certified Judicial Scriveners Act are all mandatory provisions, and contracts, the purpose of which is to violate this, are to be in violation of the law, and their judicial effects are also denied as they have the anti-social nature.

[1] Article 3 and Article 109 subparagraph 1 of the Attorney-at-Law Act / [2] Article 2 (1) 5 and 7, Article 3 (1) and Article 74 (1) 1 of the Certified Judicial Scriveners Act / [3] Article 109 subparagraph 1 of the Attorney-at-Law Act, Article 3 (1) and Article 74 (1) 1 of the Certified Judicial Scriveners Act, Article 105 of the Civil Act

[1] Supreme Court Decision 2001Do790 Decided April 13, 2001 (Gong2001Sang, 1182) Supreme Court Decision 2004Do6676 Decided May 27, 2005 (Gong2005Ha, 1101) Supreme Court Decision 2007Do1039 Decided February 28, 2008 / [3] Supreme Court Decision 2009Da98843 Decided February 25, 2010

GTel Co., Ltd. (Law Firm Han, Attorneys Kim Jin-jin et al., Counsel for the defendant-appellant)

Co., Ltd.

Suwon District Court Decision 2015Na44578, 44585 decided July 21, 2016

The part of the lower judgment against the Plaintiff (Counterclaim Defendant) shall be reversed, and that part of the case shall be remanded to the Suwon District Court Panel Division.

The grounds of appeal are examined.

1. A. Article 3 of the Attorney-at-Law Act provides that "general legal affairs" shall be one of the duties of attorney-at-law, and Article 109 subparagraph 1 of the Attorney-at-Law Act provides that a person who is not an attorney-at-law shall be punished in cases where he/she handles legal affairs

In light of the purport of Article 109 subparagraph 1 of the Attorney-at-Law Act that prohibits a person, other than an attorney-at-law, from participating in the handling of legal affairs, the "legal counseling" under the above Article includes offering advice or information on substantive and procedural matters related to legal disputes, or offering advice or assistance on legal and factual matters necessary for the resolution thereof (see Supreme Court Decision 2004Do6676, May 27, 2005).

In addition, “legal affairs” under Article 1 of the same Act refers to the processing of matters that generate, modify, or extinguish legal effects and the processing of matters that preserve or clarify legal effects. This includes the so-called “legal analysis affairs” that analyze the acquisition, loss, modification, or collision of rights corresponding to the legal effects of the rights relationship or the rights relationship recorded in the real estate registration record (see Supreme Court Decision 2007Do1039, Feb. 28, 2008), and includes the analysis of the rights to real estate subject to auction, which includes the presentation of necessary materials for real estate subject to auction, and the confirmation and explanation of the legal relationship, transaction restrictions, etc., and the provision of information and advice on the economic value (see Supreme Court Decision 2001Do790, Apr. 13, 2001).

B. Article 2(1)5 and 7 of the Certified Judicial Scriveners Act provides that one of the affairs incidental to the affairs of a certified judicial scrivener, such as consultation on the acquisition of property in an auction case under the Civil Execution Act, and consultation and consultation necessary therefor, shall be performed by a certified judicial scrivener. Article 3(1) provides that a person who is not a certified judicial scrivener shall not engage in business under Article 2, and Article 74(1)1 provides that a person who violates Article 3 shall be punished.

In light of the purport of Articles 3(1) and 74(1)1 of the Certified Judicial Scriveners Act that a person, who is not a certified judicial scrivener, intends to maintain the certified judicial scrivener system by prohibiting his/her business from running, etc., he/she may be deemed to include the “consultation on the acquisition of property in an auction case” and affairs incidental thereto under Article 2(1)5 and 7 of the Certified Judicial Scriveners Act, including the analysis of rights, the investigation of status or public books, etc., presentation of proper purchase price, provision of information, etc.

C. Article 109 subparag. 1 of the Attorney-at-Law Act and Articles 3(1) and 74(1)1 of the Certified Judicial Scriveners Act are all mandatory regulations. Contracts, the purpose of which is to violate this, by itself, have the anti-social character and are also denied judicial validity (see Supreme Court Decision 2009Da98843, Feb. 25, 2010, etc.).

2. According to the reasoning of the lower judgment and the evidence duly admitted, the following facts are revealed.

A. On May 27, 2014, the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) entered into a real estate consulting contract (hereinafter “instant consulting contract”) with the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) who is engaged in the real estate consulting business, etc., in order to purchase 12 real estate (hereinafter “instant real estate”) in the auction procedure to exercise real estate security rights (hereinafter “instant auction procedure”) at the Goyang-dong District Court Goyang-si, 2013ta-si, 30710, Goyang-si (hereinafter “instant auction procedure”). The key contents are as follows.

1) The Plaintiff shall entrust the consulting service on real estate, and the Defendant shall examine all matters, such as the analysis of the rights of the goods requested, provide the Plaintiff with the maximum services, and actively cooperate and provide advice on the real estate requested by the Plaintiff (Article 1).

2) The defendant shall consult by referring to the data of specifications of goods sold in the court, and the defendant shall not be liable for any matters other than the above data. The defendant shall present the price to be referred to the plaintiff, but the final price determination shall be based on the plaintiff's judgment and responsibility, and the defendant shall not be liable for the decision (Article

3) The consulting commission shall be KRW 100,000,000 in consideration of the provision of services for the services under Article 1 (Article 7).

4) The delivery of an object under the instant consulting contract is the Plaintiff’s responsibility for cooperation with the Defendant, and all expenses for the execution related thereto, including expenses for director’s expenses (Article 8).

B. The third sale date and its minimum sale price of the instant auction procedure were scheduled to be KRW 3,502,131,000 on May 29, 2014, and the Defendant presented the bid price of KRW 4,500,000 to the Plaintiff by analyzing data such as the specifications of the instant real estate sold. While the Plaintiff intended to apply for bid of KRW 4,027,000,000 on the third sale date of the instant auction procedure, the Defendant’s representative director Nonparty 2 accompanied Nonparty 1 requested an increase of KRW 10,00,000, and eventually, the Plaintiff applied for bid of KRW 4,037,80,000 and decided to be the highest bidder. At that time, the lower bid price was KRW 3,851,210,000.

C. After that, the Defendant recommended a bank to receive a loan in order to pay the purchase price to the Plaintiff, and provided services, such as provision of information and consultation, in relation to lien issues as follows.

1) The Defendant collected information, such as “at the time of the loan to the Seocho Saemaeul Community Fund, the auction creditor, on the side of the Orstoland (hereinafter “Ostoland”), claiming that the Plaintiff is the lien holder of the instant real estate at the time of loan,” and provided the Plaintiff with the information. The Defendant presented such information to the Plaintiff, and the Defendant said that there is a sufficient inheritance even if there exists legal dispute with the lien holder, even if there is a legal dispute with the lien holder.

2) On August 18, 2014, the Plaintiff: (a) delegated the entire contractual relationship with the Defendant’s representative director to Nonparty 2; and (b) Nonparty 2, as the Plaintiff’s agent, discussed the issue of entering into a lease agreement, etc. on the side of the Omiland as the Plaintiff’s agent.

3) Since then, the Defendant provided the Plaintiff with advice on how to fully deliver the instant real estate, such as seeking to authorize the Plaintiff to take legal measures, such as a lawsuit seeking confirmation of existence of lien, and suggesting the Plaintiff to consult with the Lao Islands.

D. On May 29, 2014, the Plaintiff paid each of the fees under the instant consulting agreement to the Defendant (including value-added tax), KRW 22,000,000 (including value-added tax), and KRW 22,000,000 (including value-added tax) on September 5, 2014 (total of KRW 44,00,000).

3. We examine the above facts in light of the legal principles as seen earlier.

A. In accordance with the instant consulting contract, the Defendant performed the work of analyzing rights based on the specifications of the objects of sale and the documents related to lien of the auction case on the instant real estate, and provided legal advice as to whether the purchase of the instant real estate and the lien holders oppose the lien. The instant consulting contract can be seen as handling the legal affairs, such as legal counseling, which are prohibited under Article 109 Subparag. 1 of the Attorney-at-Law Act, and it can also be seen as having included the “consultation on the acquisition of property” under Article 2(1)5 of the Certified Judicial Scriveners Act. Accordingly, the instant consulting contract constitutes a contract with the content of an act prohibited under Article 109 Subparag. 1 of the Attorney-at-Law and Article 74(1)1 of the Certified Judicial Scriveners Act, which constitutes an anti-social legal act.

B. Nevertheless, solely based on its stated reasoning, the lower court dismissed the Plaintiff’s primary main claim and upheld the first instance judgment that partly accepted the Defendant’s primary claim and the Defendant’s counterclaim, on the grounds as indicated in its reasoning, deeming that the instant consulting contract cannot be deemed to violate the Attorney-at-Law Act or the Certified Judicial Scriveners Act or to be contrary

In so determining, the lower court erred by misapprehending the legal principles on Article 109 subparag. 1 of the Attorney-at-Law Act and Article 2(1)5 of the Certified Judicial Scriveners Act, etc., thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds

4. Therefore, the part of the lower judgment against the Plaintiff is reversed, and that part of 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 Park Jung-hwa (Presiding Justice)