Whether an administrative agent’s indication of “Divorce” at the entrance of its office constitutes “a case where a person, other than a certified judicial scrivener, indicates that he/she will handle the affairs of a certified judicial scrivener with facilities, etc. for the purpose of gaining profits therefrom” as prescribed by Article 74(1)2 of the Certified Judicial Scriveners Act

According to Article 2(1) of the Administrative and Judicial Act, Article 2 of the Enforcement Decree of the Administrative and Judicial Act, and Articles 2, 63, and 81 of the former Family Register Act (amended by Act No. 8435, May 17, 2007), the preparation and submission of a divorce declaration by judicial divorce constitutes a service that can be performed by a licensed administrative agent. As long as there is a matter pertaining to the scope of the services of a licensed administrative agent among those related to divorce, it is difficult to readily conclude that “a person, other than a certified judicial scrivener, indicates or enters that he/she handles the affairs of a certified judicial scrivener on a facility, etc. for the purpose of gaining profits.”

Article 74(1)2 of the Certified Judicial Scriveners Act, Article 2(1) of the Administrative Judicial Act, Article 2 of the Enforcement Decree of the Administrative Judicial Act, Article 2 of the former Family Register Act (Amended by Act No. 8435, May 17, 2007), Articles 2, 63, and 81 of the Family Register Act

Defendant

Defendant

Daegu District Court Decision 2007No4351 Decided June 24, 2008

The judgment of the court below is reversed, and the case is remanded to Daegu District Court Panel Division.

We examine the grounds of appeal.

1. According to Article 2(1) of the Certified Judicial Scriveners Act, Article 2(1) of the Family Litigation Act, Article 86 of the former Enforcement Rule of the Family Register Act (repealed by the Supreme Court Regulation No. 2119, Nov. 28, 2007), the court below stated that the preparation and submission of a divorce complaint and an application for confirmation of divorce will be conducted by a certified judicial scrivener. Meanwhile, according to Article 2(1) of the Enforcement Decree of the Administrative Justice Act, Article 2 of the former Family Register Act (repealed by Act No. 8435, May 17, 2007; hereinafter the same), Article 81 and Article 63 of the former Family Register Act, which provides that the preparation and submission of a divorce report by a judicial divorce shall be conducted by a certified judicial scrivener, on the premise that the above office of the certified judicial scrivener can be conducted by a certified judicial scrivener, and that the above office of the certified judicial scrivener shall be conducted by the court, and that the above office of the certified judicial scrivener shall be combined with the administrative affairs of the Daegu District Court.

2. However, the lower court’s determination is difficult to accept.

The burden of proof for the facts constituting an offense prosecuted in a criminal trial shall be borne by a public prosecutor, and the conviction shall be based on the evidence with probative value sufficient to cause the judge to feel true beyond a reasonable doubt. If there is no such evidence, even if there is doubt that the defendant is guilty, it shall be determined with the benefit of the defendant (see Supreme Court Decision 2001Do2823, Aug. 21, 2001, etc.).

According to Article 2(1) of the Administrative Justice Act, Article 2 of the Enforcement Decree of the Administrative Justice Act, Articles 2, 63, and 81 of the former Family Register Act, etc., the preparation and submission of a divorce statement by judicial divorce falls under the scope of a licensed administrative agent. As long as it falls under the scope of a licensed administrative agent from among the affairs related to divorce, it is difficult to conclude that the defendant had expressed “Divorce” at the entrance of the office of the licensed administrative agent and expressed or entered the intent to handle the affairs of the certified judicial scrivener in the facilities, etc. for the purpose of gaining profits to the defendant by interpreting it disadvantageously to the defendant. Further, the first instance court and the lower court's admission of the defendant as evidence against the defendant did not recognize that the defendant had the purpose of gaining profits to the defendant in the prosecutor's statement at the first instance court and the prosecutor's examination of the defendant in the prosecutor's office as well as the defendant's statement at the first instance court and the prosecutor's examination of the defendant to the defendant. Meanwhile, according to the records, the defendant did not present or present documents between May 207, 2007.

Therefore, it is difficult to view that the defendant has proved that he/she had indicated his/her intention to handle the affairs of a certified judicial scrivener at the entrance of the office of a certified judicial scrivener for the

3. Nevertheless, the court below erred by misapprehending the legal principles on the degree of proof in a criminal trial, or by misapprehending the legal principles on the interpretation of Article 74(1)2 of the Certified Judicial Scriveners Act, which affected the conclusion of the judgment, and thus, the ground of appeal assigning this error is with merit.

4. Therefore, the lower judgment is reversed, and 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 Ahn Dai-hee (Presiding Justice)