Whether a crime of violation of the Attorney-at-Law Act is established where a certified judicial scrivener is represented by an auction bidding under his/her own responsibility and account without the guidance and supervision of a certified judicial scrivener (affirmative)

In light of the purport of Article 109 subparagraph 1 of the Attorney-at-Law Act, Article 3 and Article 23 (3) and (5) of the Certified Judicial Scriveners Act, where a person who is in the position of a certified judicial scrivener is in the form of a person who is in the position of a certified judicial scrivener does not merely assist affairs but actually act on behalf of a certified judicial scrivener for an auction under his/her own responsibility and accounting and receives money under his/her fee, a violation of Article 109 subparagraph 1 of the Attorney-at-Law Act is established.

Article 109 (1) of the Attorney-at-Law Act, Article 3 of the Certified Judicial Scriveners Act, Article 23 (3) and (5) of the Attorney-at-Law Act

[Plaintiff-Appellant] Plaintiff 2002Do2725 delivered on November 13, 2002 (Gong2003Sang, 125)

Defendant

Defendant and Prosecutor

Kim Jin Kim

Attorney Song Jong-spa

Seoul Western District Court Decision 2006No2053 Decided December 19, 2006

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than eight months.

The number of days under detention prior to the pronouncement of the judgment below shall be included in the above sentence.

However, the execution of the above punishment shall be suspended for two years from the date this judgment became final and conclusive.

Of the facts charged in the instant case, the charge of fraud is acquitted.

1. Summary of grounds for appeal;

A. Defendant

(1) misunderstanding of facts about violation of the Attorney-at-Law Act

An auction agent's act falls under the scope of a certified judicial scrivener's duties, and since the defendant, as a member of Nonindicted 1's affairs, conducted an auction agent under the direction of Nonindicted 1, it is merely a legitimate act in accordance with the Certified Judicial Scriveners Act. Nevertheless, the court below erred by misapprehending the fact that the court below found the defendant guilty of the violation of

(2) misunderstanding of facts about fraud

According to all circumstances, such as the progress of the auction of this case and the current status of lease deposit, the court below erred by misunderstanding the fact that the defendant was guilty of the fraud among the facts charged of this case, although the defendant did not deceiving the victim and defraud the 40 million won.

(b) An autopsy;

Considering the various circumstances of this case, the sentence of the court below against the defendant (one hundred months of imprisonment and two years of suspended execution) is too unafford and unfair, in light of the following: (a) the defendant has already been punished for the same crime six times, (b) not only acted as an attorney-at-law, but also deceiving a victim with lack of knowledge of auction, and (c) fraud of money up to KRW 0,000 by deceiving him; (d) the whole crime from the investigation stage to the court below is denied and the opening of the crime is not clear.

2. Judgment on the grounds for appeal by the defendant

A. Judgment on the misconception of facts as to the violation of the Attorney-at-Law Act

In light of the purport of Article 109 subparag. 1 of the Attorney-at-Law Act that prohibits a person, other than an attorney-at-law, from participating in the performance of legal affairs and maintaining the lawyer system, “agent” under the above Article 109 subparag. 1 of the Attorney-at-law Act includes not only the act of dealing with the legal affairs under the name of his/her agent, but also the act of using legal knowledge on behalf of himself/herself, or the act of using the legal knowledge on behalf of himself/herself, or the act of actually carrying the same effect as the act of an agent without the form of his/her own representation, such as where he/she actually takes the lead in the process of dealing with the case for a person who has no legal knowledge, or where he/she takes the lead in the process of dealing with the case for a person who wishes to buy a real estate at auction, such as determining the bid price for the person who wishes to buy the real estate at auction, and allowing him/her to receive the money under the name of his/her commission, etc. (see, e.g., Supreme Court Decision 2002Do27525

Meanwhile, according to the Certified Judicial Scriveners Act (amended by Act No. 6860, Mar. 12, 2003) as amended by Act No. 6860 of March 12, 2003, the work of a certified judicial scrivener was added to "a consultation on the acquisition of property, a request for purchase or a request for bid, or a request for bid in an auction case under the Civil Execution Act and a public auction case under the National Tax Collection Act and other Acts and subordinate statutes (Article 2 subparagraph 5 of the same Act)."

However, in light of the purport of Article 109 subparag. 1 of the Attorney-at-Law Act, Article 3 and Article 23(3) and (5) of the Certified Judicial Scriveners Act, even if a person is in the position of a certified judicial scrivener in the form of form, if he/she actually agrees to provide an auction bid on behalf of an agent under his/her own responsibility and accounting and receive money under his/her own responsibility and accounting beyond the mere support of affairs without being supervised and supervised by a certified judicial scrivener, it shall be deemed that the violation of the Attorney-at-Law Act under Article 109 subparag

On January 29, 2005, the court below duly examined and adopted the evidence. ① The Defendant was employed as a certified judicial scrivener 1 on or around January 29, 2005. At the time, Nonindicted Party 1 lost the left diatension and it was difficult for customers to communicate normally with the customer. ② The Defendant published an advertisement “Nonindicted Party 1 and the auction consulting professionals” in the place of auction information and living information, and Nonindicted Party 2 reported the above advertisement around October 2005, and found Nonindicted Party 1 as an office for Nonindicted Party 1, the Mapo-gu Seoul District Court (hereinafter omitted). ③ At the time, Nonindicted Party 1 was the head of the office without the office, and the Defendant was at the time of signing the auction agreement with Nonindicted Party 2, the head of the office of Nonindicted Party 1, the head of the office of which was 0,000,000 won, and the Defendant was at the time of signing the auction agreement with the Seoul District Court 20,000,000 won.

According to the above facts, although the defendant was in the position of non-indicted 1's secretary in form, he actually participated in almost all auction process for non-indicted 2 who wish to award the real estate subject to auction under his own responsibility and accounting without being subject to the guidance and supervision by non-indicted 1, and agreed to be paid money under the name of commission. Thus, the above act of the defendant constitutes "agent" under Article 109 subparagraph 1 of the Attorney-at-Law Act, and it is sufficiently guilty of violation of the Attorney-at-Law Act among the facts charged in this case.

Therefore, the defendant's ground of appeal disputing a mistake of facts as to the violation of the Attorney-at-Law Act among the facts charged in this case is without merit.

B. Determination of misconception of facts as to the fraud

(1) Summary of the facts charged

The summary of the fraud among the facts charged in this case is that the defendant received money from the non-indicted 1 certified judicial scrivener office in Mapo-gu Seoul Metropolitan Government (hereinafter omitted) around November 9, 2005, and the fact is that even if he received money from the victim non-indicted 2, he did not have the intent or ability to return the deposit money to the tenants moving into the commercial housing located in Yeongdeungpo-gu, Seoul Metropolitan Government (number omitted), he received the money as the lease deposit from the non-indicted 2, Yeongdeungpo-gu, Seoul Metropolitan Government (hereinafter omitted). However, although he did not have the intention or ability to return the deposit money to the tenants, the victim's money to be paid to the tenants was adjusted to KRW 14.5 million due to the court's adjustment, so the victim's money was adjusted to KRW 40 million,000,000,000, which is part of the acquisition money, from the victim's deposit account in the above non-indicted 1.

(2) The judgment of the court below

The court below found the defendant guilty of the above facts charged by finding each of the statements in the police, prosecutor's office, and court of the court below as evidence.

(3) Judgment of this Court

As shown in the above facts charged, there are parts related to the above facts charged among the statements made by the police, the prosecutor's office and the court of original trial.

First of all, among the facts charged above, as to the Defendant’s false statement that “The security deposit to be paid to the tenants was adjusted to KRW 14.5 million by the court’s adjustment,” it is difficult to believe in light of the circumstances that Nonindicted 2’s statement corresponding thereto is not trustable, and there is no other evidence to acknowledge it.

Then, considering the facts that the Defendant had no intention or ability to return the above deposit to the tenants, it is difficult for them to use the above facts charged, and the evidence submitted by the Defendant to the lower court, the first instance court to find that the Defendant did not apply the provision on demand for distribution and distribution to the tenants of the instant commercial building, which is the object of auction, as the special sale conditions were added, and the Defendant was expected to accept all the deposit for the lessee with the opposing power among the existing lessees. (2) According to the detailed statement of the sale of the instant commercial building (No. 71 of the investigation record), the amount that the Defendant would have to take over as the deposit for the lessee’s housing for the purpose of 00,000 won, including the above 60,000 won and the amount that the Defendant would have to take over from the above 20,000,000 won, which was the first 6,000,000 won and the 2,000,000,000 won.

(4) The theory of lawsuit

Therefore, the part of the judgment of the court below which found the defendant guilty as to the above fraud is erroneous in the misapprehension of facts, and the defendant's argument in the grounds of appeal disputing a mistake of facts as to the above part is with merit. Thus, the judgment of the court below which rendered a single punishment by applying the former part of Article 37 of the Criminal Act to the whole facts charged and the other facts charged as to the violation of the Attorney-at-Law Act by determining the defendant guilty and applying the former part of Article

3. Conclusion

Therefore, since the appeal by the defendant is well-grounded, the judgment of the court below shall be reversed in accordance with Article 364(6) of the Criminal Procedure Act, and the following decision shall be rendered

The defendant is a person who serves as a secretary at the office of non-indicted 1 certified judicial scrivener in Mapo-gu Seoul Metropolitan Government (hereinafter omitted).

Notwithstanding the fact that an attorney-at-law is not entitled to receive or promise to receive money or other legal affairs such as non-contentious cases, such as representation, legal counseling or preparation of legal documents, etc., with respect to legal cases such as non-contentious cases, or is not entitled to arrange such acts, an advertisement indicating that such acts are conducted by auction agents on the auction information and living information, and then a reporter has received 1% to 2% of the successful bid price by acting for an auction so that he/she can obtain a successful bid of real estate;

On November 1, 2005, at the Seoul Southern District Court located in Yangcheon-gu Seoul Metropolitan Government, requested the 2004Ma36489 (number omitted) of the same court to take a successful bid against the commercial building located in Yeongdeungpo-gu, Seoul Metropolitan Government (hereinafter referred to as the "Seoul Metropolitan Government District Court") by the victim non-indicted 2, who is involved in all auction proceedings except for submission of the title holder on the bidding list such as perusal of the auction case record, etc. for the victim, determination of the bid price, preparation of the bid list, etc., and submission of the bid price. After receiving the successful bid of the above commercial building at KRW 1.285,200,00, the 25,704,000 of the successful bid price from the victim, the 25,704,000 won was agreed to be paid to represent the non-contentious case.

1. Part of the statement corresponding thereto in the original trial by Nonindicted 2’s witness

1. Each protocol of examination of the accused prepared by the public prosecutor, containing each corresponding statement;

1. Each protocol of interrogation of the accused and Nonindicted Party 1 in the preparation of a judicial police assistant, which corresponds to the above;

1. Non-indicted 2's statement corresponding to the interrogation protocol of the defendant prepared by the prosecutor

1. The written statement of Nonindicted 2 prepared by the prosecutor, which corresponds to this, is written in part.

1. The statement of Nonindicted Party 2 in the preparation of the judicial police assistant, and the statement corresponding thereto;

1. Relevant Article of the Act and the choice of punishment for the crime;

Article 109 subparagraph 1 of the Attorney-at-Law Act (Appointment of Imprisonment)

1. Inclusion of days of detention in detention;

Article 57 of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act ( normal consideration of the points agreed with Nonindicted 2, etc.)

Although the Defendant had been sentenced one time to suspend execution, one time to be sentenced to a fine, and one time to be sentenced to a fine due to the violation of the Attorney-at-Law Act prior to the instant crime, the Defendant committed the same type of crime, and even though the Defendant led to an auction auction, it is not good that the Defendant has denied this up to the present time. In addition, taking account of the motive and background of the instant crime, its contents, degree of damage, the degree of benefits the Defendant acquired by the instant crime, the degree of benefits the Defendant acquired by the instant crime, circumstances before and after the instant crime, Defendant’s age, character and conduct, and environment, even if the fraud among the facts charged in the instant case constitutes innocence, it is reasonable to sentence the suspension of the execution of imprisonment, and thus, the Defendant shall determine the sentence as ordered.

The summary of the fraud among the facts charged in the instant case is as shown in Article 2-2 (b) (1). As seen in Article 2-2 (b) (3), since there is no evidence to prove the facts charged, it constitutes a case where there is no evidence to prove the facts charged, and thus, the above facts charged is acquitted under the latter part of Article 325 of the Criminal Procedure

Judges Park Jae-chul (Presiding Judge)