Article 109 subparag. 2 of the Attorney-at-Law Act is a violation of Article 109 subparag. 2 of the Attorney-at-Law Act by allowing an attorney-at-law to use his/her name to the office staff of a legal office established in his/her name; and whether an office staff violates Article 109 subparag. 1 of the Attorney-at-Law Act by providing legal services using the name of an attorney-at-law; / Whether the office staff has handled and handled the relevant legal services in the name of an attorney-at-law without actually subject to the direction and supervision of a certain part of his/her office (affirmative)

Article 34(3), Article 109(1) and 2 of the Attorney-at-Law Act

Supreme Court Decision 2011Do14198 Decided January 15, 2015 (Gong2015Sang, 275)

Defendant 1 and two others

Prosecutor

Daejeon High Court Decision 2012No83 decided July 18, 2012

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined.

1. The summary of the facts charged in this case is as follows.

(1) Defendant 1:

① On February 2, 2008, to August 201, 201, an attorney-at-law ( Address 1 omitted) in the legal office of Defendant 2, who has accepted the case of application for registration, etc. from the legal office of Defendant 2, prepared documents using the name of Defendant 2, and directly handled the case of application for registration by himself/herself, and received total of KRW 184,27,810 from the clients as a commission fee, and handled the case of application for registration by receiving money and valuables from the clients.

② From April 29, 2005 to September 30, 2007, the case of applying for registration was accepted by the attorney-at-law in the law office of Defendant 3, located in Seo-gu, Daejeon ( Address 2 omitted), Seo-gu, Daejeon (No. 2 omitted), with the attorney-at-law 1002, and the case of applying for registration was handled independently by preparing documents using the name of Defendant 3 and receiving fees from the clients by directly receiving fees from the clients.

(2) Defendant 2:

Defendant 1 registered as an attorney at the legal office of Defendant 2, in the form of Defendant 1 and Defendant 1, who is located in the ( Address 1 omitted), during the period from February 2008 to August 201, and had Defendant 1 accept and process registration affairs independently in the name of Defendant 2, an attorney-at-law, who is an attorney-at-law, in return for the use of his name. Defendant 1 paid the sum of KRW 2 million between March 10, 2008 and August 201 (the sum of KRW 1.5 million each month from August 2010 to August 201). In handling Defendant 1’s application for registration, Defendant 1, who is not an attorney-at-law, used Defendant 2’s name.

(3) Defendant 3:

From April 29, 2005 to September 30, 2007, Defendant 1 was registered as the office staff of the law office of Defendant 3 (from May 2006 to August 2007, the above office had been operated as the Daejeon Branch Office of Law Firm ○○) located in Seo-gu, Daejeon ( Address 2 omitted) Attorney Center 1002, and had Defendant 1 accept and handle the registration duties independently in the name of Defendant 3, an attorney-at-law, as the name of the head of the above office, after Defendant 1 registered as the head of the above office in the form of Defendant 1, and had Defendant 1 accept and process the registration duties independently in the name of Defendant 3, the attorney-at-law from April 29, 2005 to September 30, 2007, with the sum of KRW 4,350,000 per month between Defendant 1 and September 30, 2007.

2. The gist of the original judgment is as follows.

In exceptional cases where an attorney-at-law is in a position of attorney-at-law, but actually independently handles the attorney-at-law's services without being subject to the direction and supervision of the attorney-at-law (hereinafter "in the form of a lawyer-at-law service"), it constitutes a person who administers the attorney-at-law's services in excess of the normal position of attorney-at-law, and thus

However, it is difficult to view that the evidence submitted by the prosecutor alone is sufficient to prove that Defendant 1’s act constitutes “the attorney-at-law who leased the attorney’s name from Defendant 2 and Defendant 3 to perform the registration work,” and that it constitutes “the attorney-at-law who performed the registration work” under the name of Defendant 2 and Defendant 3, at the time when Defendant 1 registered as each of the office staff of the law office of Defendant 2 and Defendant 3 and handled the application for registration. The amount received by Defendant 1 while handling the application for registration cannot be deemed to have much amount of money compared to the monthly pay of the ordinary attorney-at-law. Although Defendant 1 led to Defendant 1’s confession at the prosecutor’s office, the legal judgment or evaluation part on “the price for the use of the name” is not subject to confession.

Therefore, all of the charges of this case against the defendants are judged not guilty.

3. However, the above determination by the lower court is difficult to accept as it is.

(1) In order to determine whether an attorney-at-law committed a violation under Article 109 subparag. 2 of the Attorney-at-law Act by allowing the staff of a law office (referring to “non-legal representative; hereinafter the same shall apply) established in his/her name to use his/her name; and whether the staff of a law office violates Article 109 subparag. 1 of the Attorney-at-law Act by providing legal services under the name of the attorney-at-law; and whether the staff of a law office violated Article 109 subparag. 1 of the Attorney-at-law Act by providing legal services by using the name of the attorney-at-law (see Supreme Court Decision 200Do1118, Apr. 18, 2015).

Furthermore, if a legal office clerk handles and processes the pertinent legal affairs in the name of an attorney-at-law for his/her own responsibility and account without actually under the direction and supervision of a certain portion of affairs, even if an attorney-at-law is engaged in normal activities concerning the remaining affairs, a violation of Article 109 subparag. 1 and 2 of the Attorney-at-law Act may be established against an attorney-at-law.

(2) According to the records, Defendant 1 mainly handled the case of registration for which he directly accepted, without specifically reporting the particulars of acceptance to Defendant 2 and Defendant 3 or without receiving any specific business instruction, and Defendant 1 paid a certain amount every month regardless of the number of acceptance cases, regardless of the number of acceptance cases, to Defendant 2 and Defendant 3, as the case of registration for which he accepted the case of registration for which he directly accepted the case of registration was deposited in the passbook in his name, Defendant 1 is the structure to which Defendant 1 belongs. The telephone number used mainly for the business at the time of Defendant 1’s handling of the application for registration at the law office of Defendant 2 is different from the telephone number of Defendant 2’s legal office and the name of acceptance, and the expenses are borne individually by Defendant 1.

Examining the above facts in light of the legal principles as seen earlier, there is a lot of room to evaluate that the application for registration among the duties of Defendant 2 and Defendant 3’s respective legal offices was conducted under Defendant 1’s responsibility and accounting without the direction and supervision of Defendant 2 and Defendant 3, an attorney-at-law. This does not change on the ground that Defendant 2 and Defendant 3 were engaged in ordinary activities as an attorney-at-law with respect to the remainder other than the application for registration among the duties of the legal office, or that Defendant 1 reported the outline of acceptance to Defendant 2 and Defendant 3 on monthly basis.

(3) Nevertheless, the lower court rendered a not-guilty verdict on all the charges against the Defendants solely based on its reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on interpretation of Article 109 subparag. 1 and subparag. 2 of the Attorney-at-Law Act, or by failing to exhaust all necessary deliberations, thereby adversely affecting

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 Lee Sang-hoon (Presiding Justice)