In order to apply Article 31 subparagraph 1 of the Attorney-at-Law Act, whether the case in which an attorney-at-law participated should be identical to one of the parties and the other party (affirmative), and the criteria for determining "the identity of the case"

Article 31 subparagraph 1 of the Attorney-at-Law Act prohibits an attorney from performing his/her duties in cases delegated by one of the parties to the case with the authority of the other party to the case, and the other party to the case consented to the appointment of the attorney. The reason why an attorney-at-law performs his/her duties in such cases is that the attorney-at-law trusts the attorney-at-law and helps to reflect the trust of one of the parties to the case, and thus, the attorney-at-law cannot perform his/her duties. Thus, in such cases, Article 31 subparagraph 1 of the Attorney-at-law Act prohibits the attorney-at-law from performing his/her duties. Thus, in order to apply Article 31 subparagraph 1 of the Attorney-at-law Act, the case in which the attorney-at-law participated must be identical to one of the parties and the other party. Whether the case is identical shall be determined individually according to the scope of conflicting interests

Subparagraph 1 of Article 31 of the Attorney-at-Law Act

Plaintiff

Defendant (Attorney Lee Sang-soo, Counsel for the defendant-appellant)

Seoul High Court Decision 2003Na5421 delivered on July 10, 2003

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

1. Article 31 subparagraph 1 of the Attorney-at-Law Act prohibits an attorney from performing his/her duties in cases where the other party to a case consented to the acceptance of an award from one of the parties to the case. The reason why an attorney-at-law performs his/her duties in relation to such a case is that the attorney-at-law trusts the attorney-at-law and acts in favor of himself/herself and reflects the trust of one of the parties to the case, and thus, the attorney-at-law cannot perform his/her duties in such cases. Thus, in order to apply Article 31 subparagraph 1 of the Attorney-at-law Act, the case in which the attorney-at-law participated must be identical to one of the parties and the other party. The issue of whether the case is identical shall be determined depending on whether the substance of the dispute, which is the basis thereof, is identical to that of the other party, and therefore, whether the procedure is the same as that of a civil case or a criminal case.

In the same purport, it is proper that the court below determined that even if the defendant's attorney accepted the number of cases from the non-party and was delegated by the defendant who was the other party to the case where the litigation was represented by a representative, the case does not fall under Article 31 subparagraph 1 of the Attorney-at-Law Act in the purport that the case cannot be seen as identical between the plaintiff and the defendant, and there is no violation of law as to the application of Article 31 subparagraph 1 of the Attorney-at-Law Act as argued in the Grounds

2. The court below decided to the effect that, by comprehensively taking account of the adopted evidence, the plaintiff acquired the store of this case from the defendant, the amount of 65 million won including the premium, and the defendant agreed to allow the plaintiff to enter into a direct lease contract with the plaza Co., Ltd. (hereinafter referred to as the " plaza"), which is the lessor, but the plaintiff could not enter into a direct lease contract with the plaza because the plaza refused it, and thus the plaintiff could not enter into a direct lease contract with the plaza, the court below decided that the plaintiff set the store of this case from the defendant who obtained the consent of the plaza on September 1, 1992, the plaintiff set the deposit amount of 65 million won including the deposit amount of 10.8 million won and the premium amount of 65 million won, and that the defendant would be paid the monthly rent for the store of this case to the defendant, thereby making the defendant enter into a direct lease contract with the plaza to the plaintiff. In light of the records, the court below's findings of fact and judgment are acceptable, and there were no errors in the misapprehension of legal nature of contracts between original contracts.

3. Therefore, the appeal shall be dismissed, and all costs of appeal shall be borne by the plaintiff who is the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jack-dam (Presiding Justice)