Appellant

this Court Order 2003Mo19 dated December 17, 2003

The appeal of this case is dismissed.

1. Factual basis

According to the records, the following facts are recognized.

A. The appellant is an attorney-at-law, who was registered with the Korean Bar Association in March 2002, and (monthly and Day omitted) the “Law Office” in the Seocho Tax Office (Name omitted) is registered with the Korean Bar Association, and after completing business registration with the trade name, the appellant provided personal and physical facilities to handle the attorney-at-law affairs at the leased office, Seocho-gu Seoul, Seocho-gu, Seocho-gu, Seoul and provide a large number of clients with legal representation and legal advice services, etc. continuously and repeatedly, and is paid the total income tax due to value-added tax and business income.

B. On May 29, 2003, the appellant filed an application for registration of the establishment of a trade name with the commercial registry office "(title omitted)," stating the type of business as "1. Legal service business, 2. Real Estate Development, 3. and other matters", but the registry office of the above registry office rejected the appellant's application on June 2, 2003 by applying Article 46 of the Commercial Act and Article 159 (2) of the Non-Contentious Case Litigation Procedure Act (the case is not a matter to be registered) on the ground that the appellant is an attorney-at-law who

C. On December 17, 2003, when the appellant raises an objection to the court below, the court below dismissed the appellant's objection on the ground that the legal service business among the types of business stated in the appellant's written application refers to a lawyer's duty. Since the appellant's duty as an attorney is not a commercial activity for profit-making purposes, the appellant is not a merchant, and as to the remainder of business stated in the written application, the appellant can carry out business activities with permission from the local bar association to which he belongs pursuant to Article 38 (2) of the Attorney-at-Law Act, and it was not submitted that such permission was obtained. Thus, the registrar dismissed the appellant's application

2. The appellant's assertion;

The appellant is a constructive merchant under Article 5(1) of the Commercial Act, i.e., a constructive merchant under the legal fiction of Article 5(1) of the Commercial Act, i.e., a person who operates a business in a merchant manner through stores or other similar facilities, and denies the merchant nature of an attorney-at-law on the ground that there is no commercial profit in the attorney-at-law affairs, in light of the following, the appellant is equipped with human and physical facilities to handle the affairs of the attorney-at-law by leasing the office

A. Although a public nature of a lawyer’s duties exists, this does not relate to an attorney’s act of representation in accordance with delegation of a lawsuit itself, not to a delegation contract with the client. As long as an attorney concludes a delegation contract with the client for a fee and administers the delegated affairs, it cannot be denied that there is profit-making nature

B. Article 38 (2) of the Attorney-at-Law Act prohibits this attorney from engaging in the conduct of for-profit business without permission of a local bar association to which he belongs, not only for the purpose of prohibiting concurrent operation of for-profit business except for attorney-at-law, but also for the purpose of prohibiting the attorney-at-law from becoming an executive partner of a profit-making corporation (excluding law firms). Rather, the latter part of Article 38 (2) of the Attorney-at-law Act provides that an attorney-at-law from becoming an executive partner of a profit-making corporation (excluding law firms) provides that the attorney-at-law shall be granted profit-making.

C. The purpose of recognizing the income accrued from the attorney-at-law's affairs as business income and imposing comprehensive income tax is to recognize that the attorney-at-law affairs are for profit.

D. In order to select a trade name and make it a trade name with a credit, reputation, or property value, there is a benefit to distinguish the trade name of a lawyer from that of another person, and from the customer’s perspective, it is necessary to guarantee that a specific attorney’s trade name is not confused with that of another attorney, and therefore, it is necessary to use a mutual registration system for attorney affairs

3. Determination

Article 46 of the Commercial Act does not define the case acceptance or legal advice as a basic commercial activity. If a professional such as an attorney-at-law, etc. is equipped with a store or other similar facility in performing his/her own duties by utilizing his/her expertise and actually continues and repeatedly for profit-making purposes, whether the professional is deemed as a constructive merchant under Article 5 (1) of the Commercial Act, and whether the Commercial Act applies to his/her duties shall be determined from the standpoint of the whole legal order including the special law governing the duties of the professional, as well as the Commercial Act.

With respect to the mission of an attorney-at-law, the mission of an attorney-at-law is to defend fundamental human rights and realize social justice. An attorney-at-law shall perform his/her duties faithfully in accordance with his/her mission and endeavor to maintain social order and improve the legal system (Article 1). With respect to the status of an attorney-at-law, “an attorney-at-law shall perform his/her duties independently and freely as a legal professional with public nature” (Article 2). In relation to the attorney-at-law’s duties, “an attorney-at-law shall perform acts concerning litigation, request for administrative disposition by delegation by the parties or other persons concerned, or by the State, local governments or other public institutions, or conduct legal affairs on behalf of the clients or upon request of the public institutions” (Article 3 of the Attorney-at-law Act). In addition, the Attorney-at-law Act provides that only a person with a certain qualification can perform his/her duties as an attorney-at-law, and the location and number of clerical staff, qualification of an attorney-at-law is limited, not for profit-making purposes, prohibition of attorney-at-law.

Therefore, even if an attorney-at-law has a store or other similar facility and actually performs his/her duties, such as continuing and repeatedly accepting litigation cases for profit-making purposes, he/she shall not be deemed to be a “person who operates his/her business by merchant means” under the current legal order. Therefore, in relation to his/her own duties and activities, an attorney-at-law shall not be deemed to be a constructive merchant under Article 5(1) of the Commercial Act in relation to his/her own duties and activities. Although it is not different from imposing value-added tax on his/her services provided by an attorney-at-law as recognized by tax policy necessity or imposing comprehensive income tax on his/her income generated from his/her duties as business income, it cannot be deemed that there is a need

4. Conclusion

Therefore, the decision of the court below that dismissed the appellant's objection is just, and the appellant's appeal is without merit, and it is dismissed. It is so decided as per Disposition.

Judges Kim Chang-chul (Presiding Judge)