Plaintiff (Attorney Jeon Soo-ho, Counsel for the plaintiff-appellant)

Busan Local Certified Judicial Scriveners (Law Firm C&K, Attorneys Kang Chang-ok, Counsel for defendant-appellant)

October 31, 2014

1. The part of the lawsuit in this case to nullify the invalidity of the rules of the Association is dismissed.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by the Plaintiff.

Article 54 of the Rules of the Busan Local Certified Judicial Scriveners Association (hereinafter referred to as the “Rules of this case”) confirms that the Defendant’s revocation of approval for employment of a certified judicial scrivener on June 9, 2014 against the Plaintiff is null and void.

1. Determination as to the legality of the claim for nullification of the rules among the lawsuits in this case

ex officio, the subject of a lawsuit for confirmation must be against the existence of specific rights or legal relations, so it cannot be claimed as a lawsuit for confirmation to confirm the validity of a general, abstract statute, or statute itself (see, e.g., Supreme Court Decision 2011Da38271, Sept. 8, 2011). Of the instant lawsuit, the part seeking confirmation of invalidity of Article 54 of the Rules among the instant lawsuit is unlawful.

2. Judgment on the claim to nullify the invalidity of the revocation of employment approval of a certified judicial scrivener

(a) Basic facts;

1) The Plaintiff, upon obtaining approval from the Defendant to employ a certified judicial scrivener clerical staff, is a person employed and worked as a clerical staff of Nonparty 1’s office from December 5, 2013, and the Defendant is a juristic person established pursuant to Article 52 of the Certified Judicial Scriveners Act.

2) The Plaintiff, from October 15, 2013 to October 29, 2013, who was employed and worked as the clerical staff of Nonparty 1’s office, had the Defendant employed Nonparty 3 while working in the office of Nonparty 2 and had the clerical staff to attract unfair cases without obtaining approval from the Defendant. The Defendant, on March 31, 2014, held a disciplinary committee for clerical staff of a certified judicial scrivener (hereinafter “Disciplinary Committee”) and took a disciplinary action for three months of suspension on the ground that the above act of the Plaintiff constitutes grounds for disciplinary action under Article 4 subparag. 2 to 5 of the Defendant’s Disciplinary Regulation for Adverse Officer (hereinafter “Disciplinary Regulation”). At that time, the Defendant notified the Plaintiff thereof.

3) Nevertheless, the Plaintiff continued to serve as an office worker at Nonparty 1’s office. On June 2, 2014, the Defendant referred the Plaintiff to the Disciplinary Committee, and notified the Plaintiff of the fact that the Plaintiff’s refusal to comply with the disciplinary action for March 2, 2014 constitutes grounds for disciplinary action under Article 4 subparag. 1, subparag. 2, and subparag. 4 of the Discipline Regulations (hereinafter “instant disposition”).

4) The provisions of laws, etc. relating to the instant case are as shown in the attached Form.

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 5 (including provisional number), Eul evidence 1 to 3, the purport of the whole pleadings

B. The plaintiff's assertion

1) Claim on the validity of Article 37(6) of the Rules of Certified Judicial Scriveners

A) Violation of the principle of statutory reservation

A disposition to revoke approval for employment of a certified judicial scrivener is a case of dismissal under the Labor Standards Act, which limits the right to work under the Constitution. Thus, Article 37(6) of the Rules of Certified Judicial Scriveners, which is a ground for the disposition of this case, provides that "where a certified judicial scrivener falls under any of the subparagraphs of Article 23(2) of the Act or where a certified judicial scrivener falls under any of the subparagraphs of Article 23(2) of the Act or performs any act deemed an obstacle to performing his/her duties as a certified judicial scrivener, the approval for employment shall be revoked." "where a certified judicial scrivener falls under any of the subparagraphs of Article 23(2) of the Certified Judicial Scriveners Act," the grounds for revoking approval are reserved under the Act on Certified Judicial Scriveners, while "where a certified judicial scrivener has committed any act deemed an obstacle to performing his/her duties as a certified judicial scrivener," there is no ground for revoking such approval

B) deviation from the limitation of delegated legislation

Article 23(4) of the Certified Judicial Scriveners Act provides that “The number and employment of clerical staff and other necessary matters shall be prescribed by the Supreme Court Regulations” shall be deemed to be a statutory reservation provision under Article 37(6) of the said Rules. However, Article 23(4) of the Certified Judicial Scriveners Act delegates only the number of clerical staff and the grounds for restrictions on employment of clerical staff, and it does not delegate only new rights or duties, and Article 37(6) of the Rules of Certified Judicial Scriveners shall be added to the grounds for restrictions on employment in addition to the grounds for restrictions on employment under the Certified Judicial Scriveners Act. This is null and void as it deviates from the limitation of delegated legislation.

C) in violation of the principle of clarity.

In Article 37(6) of the Rules on Certified Judicial Scriveners, “where a person commits an act deemed to interfere with the performance of his/her duties as a certified judicial scrivener” is a comprehensive and abstract provision and null and void in violation of the principle of clarity.

2) The argument on the validity and scope of application of the instant bylaws

The revocation of employment approval shall be legally based on dismissal under the Labor Standards Act, and the rules and disciplinary actions of this case, which are determined to be eligible for the revocation of employment approval as disciplinary action, shall be null and void since they were enacted without any legal basis. Even if the rules in this case are valid, the defendant's member, namely, the plaintiff who is not a certified judicial scrivener, shall not be bound by the rules in this case, so the disposition in this case shall be null and void.

3) As to the procedural and practical defect of the instant disposition

The disciplinary action against a certified judicial scrivener shall be taken by the disciplinary committee pursuant to Article 54 (1) of the Rules of this case, but Article 2 of the Discipline Regulation enacted upon delegation of the Rules of this case by the defendant, which provides that the Ethics Committee shall deliberate on the disciplinary action, thereby inconsistent with the upper provisions. Accordingly, an ethics committee, which is not the disciplinary committee, holds an ethics committee and takes the disposition of this case against the plaintiff. This constitutes procedural defects.

In addition, the plaintiff worked in the office of the non-party 2 in the status of the defendant from October 15, 2013 to the 29th day of the same month, which was employed as the office of the non-party 1 as the office of the non-party 1, and had not been approved as the office of the certified judicial scrivener. The defendant issued the disposition of suspending the plaintiff for the reason that the plaintiff unduly detained the case for the above period, which was the previous term of office of the certified judicial scrivener, and made the disposition of this case on the ground that the plaintiff continued to work in violation of this provision. This is null and void because the plaintiff made a disadvantageous disposition on the ground of the reason that

C. Determination

1) Determination on the validity of Article 37(6) of the Rules of Certified Judicial Scriveners

In light of the following circumstances, it cannot be deemed null and void since Article 37(6) of the Rules of Certified Judicial Scriveners violates the principle of statutory reservation and the principle of clarity, or goes beyond the limit of delegated legislation. Thus, the plaintiff's assertion in this part is without merit.

(1) Article 23(4) of the Certified Judicial Scriveners Act delegates "the number, employment, and other necessary matters" to the Supreme Court Regulations. In light of the phrase "other," it is reasonable to deem that the above provision has delegated matters other than those related to the number and employment of certified judicial scriveners so that it can be prescribed by the Supreme Court Regulations. In addition, it is necessary to delegate it to the Supreme Court Regulations so that it can be determined flexibly by coping with the changed social and economic situation, and related regulations or the interpretation of the Act can sufficiently grasp the scope or limits of delegation inherent in the interpretation of the Act, and therefore, it cannot be deemed that the provision violating the prohibition of comprehensive delegation is

(2) Accordingly, Article 37(1) of the Rules of Certified Judicial Scriveners provides that "a certified judicial scrivener may employ a clerk after obtaining approval from the competent Local Certified Judicial Scriveners Association," and Article 37(6) provides that "where a certified judicial scrivener performs an act deemed to interfere with the performance of his/her duties as a reason and clerical staff under each subparagraph of Article 23(2) of the Certified Judicial Scriveners Act, his/her employment approval shall be revoked." In light of the public interest and expertise of the certified judicial scrivener's affairs, the approval system for employment of a certified judicial scrivener under the rules of the certified judicial scrivener shall be deemed to fall under "other necessary matters".

(3) Article 37(6) of the Rules on Certified Judicial Scriveners provides that, in addition to the grounds for restrictions on the appointment of clerical staff under the Act on Certified Judicial Scriveners, “where a person commits an act deemed to hinder the performance of duties as a certified judicial scrivener,” the grounds for revoking the appointment. Even if the contents of the above provisions are somewhat abstract and comprehensive, it is necessary to secure the public interest and expertise of the affairs of certified judicial scrivener, which are the purpose of the approval system for employment of certified judicial scrivener, which is the purpose of the rules on certified judicial scrivener, which is the approval system for employment of certified judicial scrivener, which is the supplementary action of

2) Determination on the validity and scope of application of the instant bylaws

Article 54 (3) of the Rules of the instant case provides that the types of disciplinary action against a certified judicial scrivener shall be reprimand, suspension of service, and cancellation of approval. This is reasonable to deem that it constitutes "matters necessary to achieve the objectives of the Local Certified Judicial Scriveners Association" as prescribed by Article 54 (9) of the Rules of the Certified Judicial Scriveners Act, because Article 54 (3) of the Rules of the instant case provides for disciplinary action against a certified judicial scrivener under the conditions as prescribed by the Rules of the instant case in order to secure the public interest and expertise of the affairs of the certified judicial scrivener. Thus, it is difficult to view that the contents of the above provision are essentially restricted to the freedom of choosing a certified judicial scrivener and the right to work, or is not based on the law and thus null and void.

In addition, the employment of a certified judicial scrivener is based on Article 23 of the Certified Judicial Scriveners Act and Article 37 of the Regulations on Certified Judicial Scriveners. Article 37 (1) of the Rules on Certified Judicial Scriveners provides the authority to approve the employment of a certified judicial scrivener and the authority to cancel the employment of a certified judicial scrivener is also granted to the affiliated Local Certified Judicial Scriveners Association. The rules of this case prepared by the defendant to exercise such authority are based on the Certified Judicial Scriveners Act and the Rules on Certified Judicial Scriveners. Accordingly, since the rules of this case are in the status of subordinate regulations enacted with the delegation of the rules on Certified Judicial Scriveners and the Rules on Certified Judicial Scriveners, it cannot be deemed that the rules of this case are not applied solely on the ground that the certified judicial scrivener subject to the rules on Certified Judicial Scriveners and the Rules on

Therefore, this part of the plaintiff's assertion is without merit.

3) Determination as to the procedural and practical defect of the instant disposition

Considering the following circumstances, it cannot be deemed that there is procedural and practical defect in the disposition of this case, taking into account the following circumstances that can be seen by comprehensively taking into account the following circumstances, the Plaintiff’s assertion on this part is without merit.

① Under Article 54 subparagraph 9 of the Certified Judicial Scriveners Act, the Defendant established an ethics committee as a permanent committee under Article 33 of the Rules of this case, and may establish a disciplinary committee for disciplinary action against a certified judicial scrivener. Article 2 of the Discipline Regulation provides that the above ethics committee shall organize a disciplinary committee. Since the instant disposition was conducted in accordance with the above provision, it cannot be deemed that there is any procedural defect in deliberation and resolution of the disciplinary action against the Plaintiff by an ethics committee rather than the disciplinary committee.

(2) The employment approval system of Article 37 of the Rules of Certified Judicial Scriveners strictly limits the employment standards and the number of persons available for the employment of the certified judicial scrivener. In light of the purpose of prohibiting the employment of the certified judicial scrivener without obtaining the employment approval, even if the plaintiff performed the duties of the certified judicial scrivener without obtaining the employment approval, it is reasonable to view that the defendant is subject to disciplinary action on the premise that the above act of the plaintiff was actually performed as the certified judicial scrivener.

③ If a person who performed the affairs of a certified judicial scrivener without obtaining the employment approval applies for the employment approval of a certified judicial scrivener in a fixed manner to the Local Certified Judicial Scriveners Association to which he/she belongs, it may be deemed a ground for refusal of the employment approval if such ground is found to exist at the time of the employment approval. However, if the employment approval was not revealed at the time of the employment approval, but it is impossible to revoke the employment approval of a certified judicial scrivener, if such ground is found to exist after the employment approval was granted, it would not be consistent with the preceding case, nor would it go against the purpose of the employment approval system prohibiting the employment of a certified judicial scrivener without the employment approval.

Therefore, the plaintiff's assertion on this part is without merit.

3. Conclusion

Therefore, the plaintiff's lawsuit of this case is dismissed as it is unlawful and it is dismissed as it is, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Sung-man (Presiding Judge)