Whether a certified judicial scrivener can be deemed a constructive merchant under Article 5 (1) of the Commercial Act, and whether the registration of a trade name of a certified judicial scrivener is permitted accordingly (negative)

In addition, the activities of a certified judicial scrivener whose activities are limited to a considerable degree under the laws and regulations, and whose activities are required to promote the public nature, are inherently different from the activities of merchants, and as to the activities related to the duties of a certified judicial scrivener and their resulting legal relations formed thereby, there is no special social and economic necessity or request that the Commercial Act should be applied in the same manner as the activities of merchants and their legal relations formed thereby. Therefore, a certified judicial scrivener cannot be deemed to be a "person who conducts business by a merchant method" under Article 5(1) of the Commercial Act. Therefore, a disposition of a certified judicial scrivener who rejected an application for the trade name registration of a certified judicial scrivener is justifiable, and a disposition of a certified judicial scrivener who dismissed the application for the trade name registration of a certified judicial scrivener is just, and in the case of a joint corporation, a registration of its name is permitted under Article 33 of the Certified Judicial

Articles 5(1) and 18 of the Commercial Act, Article 38(2)1 of the Certified Judicial Scriveners Act

[Plaintiff-Appellee] 2006Ma334 dated July 26, 2007 (Gong2007Ha, 1339)

Re-appellant

Seoul Central District Court Order 2005Ra165 dated July 18, 2007

The reappeal is dismissed.

The grounds of reappeal are examined.

Examining various provisions regarding the purpose, contents of duties, qualification and selection system, registration system, establishment and name of office, affiliation, remuneration, obligation and responsibility for duties, disciplinary system, supervision system, etc. of certified judicial scrivener as stipulated in the Certified Judicial Scriveners Act, it shall be deemed that activities of a certified judicial scrivener are restricted to a considerable degree of profit-making activities and the public nature of duties is required in accordance with the Acts and subordinate statutes. Under such limitation, activities of a certified judicial scrivener shall be punished by a typical business activity emphasizing simple, speedy and external appearance, and shall promote business activation through free advertisement and publicity activities, and shall be in an essential difference from the business activities of a merchant who is allowed to pursue profit-making as much as possible through free expansion of personnel and material foundation through the appointment of a commercial employee, such as the establishment and manager of a place of business, anonymous association, commercial agent, etc. Furthermore, with respect to activities related to the duties of a certified judicial scrivener and legal relations formed therefrom, it shall not be deemed that there is a special social and economic necessity or request for the Commercial Act to be applied in the same way as those formed thereby.

Therefore, a certified judicial scrivener cannot be deemed to be "a person who operates a business through a merchant method" under Article 5 (1) of the Commercial Act. Accordingly, the decision of the court below that the disposition of the registrar which rejected the application of the trade name registration of this case premised on the premise that the plaintiff, who is a certified judicial scrivener, is justifiable is just. In the case of a joint judicial scrivener, the registration of its name is permitted under Article 33 of the Certified Judicial Scriveners Act, or there is a case where there is a limitation provision for public interest in other specialized occupations that allow registration of trade name, and it cannot be deemed to be illegal on the ground that there is an unfair discrimination (see Supreme Court Order 2006Ma334, July 26, 200

The order of the court below did not err in the misapprehension of legal principles as to Article 5 (1) of the Commercial Act, incomplete hearing, or omission of judgment as alleged in the grounds for reappeal.

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

Justices Cha Han-sung (Presiding Justice)