The meaning of "appraisal" and "agent" under Article 78 (2) of the former Attorney-at-Law Act; or the scope of confiscation and collection under Article 82 of the former Attorney-at-Law Act where a person who is not an attorney-at-law conducts appraisal such as analysis of causes of traffic accidents and receives expenses

A. In light of the legislative intent of Article 78 subparagraph 2 of the former Attorney-at-Law Act (amended by Act No. 4544 of Mar. 10, 193) and the current Attorney-at-Law Act (amended by Act No. 90 subparagraph 2 of Article 90), which led to the provision, amended the provisions of Article 90 subparagraph 2 of the former Attorney-at-Law Act by one mode of "legal affairs" concerning "legal affairs", the "appraisal" and "agent" under Article 78 subparagraph 2 of the former Attorney-at-Law Act shall not be deemed to have the same concept as that of the civil litigation. In the general case concerning the occurrence of a dispute or a new right and duty relationship, it shall be understood that there is a difference or doubt about the legal affairs conducted for the resolution of the dispute or dispute, therefore, it is reasonable to understand that the "appraisal" as an act of making a judgment on a specific matter by law is excluded from expertise other than the law, and that it is reasonable to deal with the legal affairs of a case in lieu of a dispute.

B. In light of the legislative intent of Article 78 subparagraph 2 of the former Attorney-at-Law Act that prohibits non-legal practice, if a person who is not an attorney-at-law gives an appraisal to analyze the cause of a traffic accident not prohibited by the Attorney-at-Law Act and receives the cost, it cannot be deemed a crime within the scope of the cost. It shall be limited to a crime exceeding the scope of compensation for actual expenses, and the collection or confiscation under Article 82 of the former Attorney-at-law Act shall be limited to the scope of the collection or confiscation.

A. (B) Article 80 and Article 78 subparagraph 2 of the former Attorney-at-Law Act (amended by Act No. 4544 of March 10, 193), Article 90 subparagraph 2 of the Attorney-at-Law Act, Article 82 subparagraph 2 of the former Attorney-at-Law Act, Article 94 of the Attorney-at-Law Act

Defendant

Defendant

Attorney Park Ho-ju

Jeonju District Court Decision 93No573 delivered on November 16, 1993

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

The grounds of appeal by the defense counsel are examined.

1. Facts charged and the summary of the judgment below

The summary of the facts charged of this case is that the defendant paid 1,50,000 won per case to the head office of the Korea Traffic Accident Investigation and Research Institute, even though he is not an attorney-at-law, and the defendant received money in advance from the head office as the activity expenses per case, or if the defendant received money in advance from the parties as the activity expenses, etc. and has no economic ability of the parties, he will receive the money from the parties later as the contingent fees, and he will receive the money for the case of the traffic accident which he requests from the president of the Seoul Investigation and Investigation Institute, from 19:6 on July 3, 198 to 19:40 on behalf of the clients through on-site investigation, witness interview, inspection of investigation records, objection, written complaint, submission of written complaint, etc., and 1:6:40 on behalf of the defendant, the private taxi driver of the above Korea Traffic Investigation and Investigation Institute, and 2:1:40 on behalf of the defendant during the investigation and investigation report from the Seoul Investigation Center.

In full view of the evidence admitted by the judgment of the court of first instance, the court below determined that it is sufficient to find the above facts charged as guilty. However, the court below accepted the grounds for appeal of unfair sentencing by the defendant and reversed the judgment of the court below, and applied Article 80, Article 78 subparagraph 2, and Article 82 of the former Attorney-at-Law Act (amended by Act No. 4544 of March 10, 193; hereinafter the same shall apply) to the defendant, the court below imposed a penalty of one year, suspension of execution, two years, 5,60,000 won.

2. As to whether there was no “appraisal” or “agent” under Article 78 subparag. 2 of the former Attorney-at-Law Act

(a) The meaning of the above "appraisal" and "agent"

In general, the duties of attorney-at-law are to conduct legal affairs widely in the mission of protecting fundamental human rights and realizing social justice, so the Attorney-at-law Act strictly limits the qualification of attorney-at-law and takes all necessary measures such as complying with the rules necessary for the good faith and proper performance of their duties.

However, if a person who does not comply with the law does not intervene in another person's legal case from the beginning for money, valuables, or other benefits, it may harm the interests of the parties or other interested persons, interfere with the fairness and smooth operation of the legal life, and thereby disrupt the legal order. Article 78 subparagraph 2 of the former Attorney-at-Law Act prohibiting the handling of legal affairs by a non-legal practitioner should be deemed to have the intention to avoid such concerns by maintaining the lawyer system.

Considering the above legislative intent and the fact that the current Attorney-at-Law amended the contents of the "appraisal" in Article 90 subparagraph 2 of the above provision by one form of "legal affairs" with regard to "legal affairs", the above "appraisal" and "agent" shall not be deemed to be identical to those in civil and criminal litigations, and in the general case concerning the occurrence of legal rights and duties, i.e., disputes or questions with respect to legal rights and duties, or new rights and duties relations, they shall be understood as one form of administrative affairs conducted for the resolution of such disputes or discussions, and therefore, the "appraisal" shall be excluded from expert knowledge on specific matters based on legal expertise, other than the law, and therefore, it shall be reasonable to understand that the above "agent" and "agent" are all acts dealing with legal cases on behalf of the principal, including acts of facts concerning dispute settlement, respectively.

B. In the instant case

In this case, in order to analyze the cause of a traffic accident, each act of the defendant's surveying the accident site, inspecting the investigation records, judging the collected data, and compiling and delivering the results to the client as an analysis report shall be deemed to be a premise of the physical expertise, such as the physical exercise rule, etc. (No. 152-214) and the attorney-at-law's office cannot be deemed to be a "appraisal" under the Attorney-at-law Act, unless it falls under the position of the lawyer.

However, in order to draw a conclusion favorable to clients in civil and criminal cases, if only the data that justify the conclusion and only the data that justify the conclusion were collected and made an analysis report, such act is an act of legal assertion about the existence and degree of negligence, even if the form of appraisal was borrowed, and it is reasonable to deem that the act constitutes a violation of the Attorney-at-Law Act. However, the criminal facts recognized by the court below appears not to be purport as a whole, and there are no materials to recognize it in the records, and the court below, which held each act as "appraisal", is erroneous in the misapprehension of legal principles or in the misapprehension of the rules of evidence.

Then, among the acts of this case, participating and expressing opinions on behalf of the client at the police site inspection, etc. constitutes an act of de facto defense, and in the case of accusation, appeal, reappeal, etc. under the name of the client, the preparation and submission of a complaint, etc. on behalf of the client should be deemed as having led the settlement of the case, and it constitutes an act of representation under the Attorney-at-Law Act, as it actually led the settlement of the case and was not an attorney-at-law.

In addition, the act of demanding or opposing the correction of the wrong investigation decision theory is also seeking to correct it, and there is room to correspond to the "agent" under the Attorney Law as long as it can be seen as an act of defense against the requester on behalf of the requester beyond the scope acceptable by social norms.

However, as long as the act of collecting data for the analysis of causes of an accident according to the physical exercise rule, not only the act of collecting answers, reals, photographs, and witnesses' statements in the accident site but also the act of collecting data for the analysis of causes of an accident according to the physical exercise rule, it cannot be viewed as "agent" in the attorney law.

Ultimately, the court below's finding the whole act of each act as "appraisal" and "agent" under the Attorney Act without such classification is erroneous in the misunderstanding of relevant legal principles, in violation of the rules of evidence, or in incomplete deliberation, which affected the conclusion of the judgment, and therefore, the grounds for appeal are justified within the scope of pointing this out.

3. As to whether the above provision of the Attorney-at-law Act only received compensation for actual expenses and did not receive money or other benefits, the above provision of the Attorney-at-law Act provides that the act of receiving money, valuables, entertainment or other benefits or of promise shall be punished. In light of the legislative intent of the above provision of the Act, prior to prohibiting the handling of legal affairs by the attorney-at-law, the "interest" under the above provision of the Act shall be appraised for the analysis, etc. of causes of accidents for which the attorney-at-law is not prohibited, and if the defendant receives the cost, it shall not be deemed a crime within the scope of the cost, and it shall be limited to the extent of collection or confiscation exceeding the scope of

Nevertheless, the court below's decision is erroneous as it points out the above part without distinguishing it from the above part. Thus, it is reasonable to point this out.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Kim Jong-soo (Presiding Justice)