[1] Whether a person who operates a business through a merchant method constitutes an attorney-at-law under Article 5(1) of the Commercial Act (negative)

[2] Where an attorney-at-law brought a lawsuit seeking the payment of contingent fees under a delegation contract with Eul, the case holding that the obligation to pay contingent fees cannot be deemed as "business-related obligation" or "business office" referred to in the proviso of Article 467 (2) of the Civil Code, and that the obligation to pay contingent fees shall not be deemed as "business-related obligation" or "business office" referred to in the above provision, and that Eul's obligation to pay contingent fees shall belong to the competent

[1] Article 5 (1) of the Commercial Act / [2] Article 8 of the Civil Procedure Act, Article 467 (2) of the Civil Act, Article 5 (1) of the Commercial Act

[1] Supreme Court Order 2006Ma334 dated July 26, 2007 (Gong2007Ha, 1339)

Applicant

Respondent

Seoul Eastern District Court Order 2010Ra269 dated December 28, 2010

The order of the court below shall be reversed and the decision of the first instance shall be revoked.

1. The court below affirmed the decision of the court of first instance, which was transferred to the Jeju District Court with general forum of the other party, on the ground that the attorney-at-law filed a lawsuit seeking the payment of the contingent fees in accordance with the delegation contract with the other party's agent, and it is clear that the re-appellant seeks the payment of the claims arising from his business, and the main text of Article 467 (2) of the Civil Code provides that the repayment of claims other than the specified delivery must be made at the present address of the obligee's present address, and the proviso provides that the payment of claims related to business must be made at the present address of the obligee's present address.

2. However, in light of the various provisions of the Attorney-at-law Act which strictly limits attorney-at-law's profit-making activities and emphasizes high level of public nature and ethics with respect to their duties, an attorney-at-law's act of acting as an agent in connection with acts, etc. and legal affairs by using professional legal knowledge in accordance with the characteristics of each individual case based on an individual trust relationship with a delegating and commissioning person shall be punished, and an attorney-at-law's act of acting as an agent in connection with acts, etc. shall be punished by simple, prompt and external appearance; promoting business through free advertising and public relations activities; promoting the revitalization of business; and freely expanding the basis of personal and material business through the appointment of commercial employees, such as the establishment and manager of a place of business; and pursuing profits as much as possible through free expansion of the basis of business through an anonymous association, an anonymous association, and a commercial agent's act related to the attorney-at-law's duties and legal relations formed therefrom, and thus, it cannot be deemed that there is a special socioeconomic or demand that the Commercial Act should not apply.

Therefore, the obligation to pay contingent fees in this case cannot be deemed to be the "business obligation" or "business office" as referred to in the proviso of Article 467 (2) of the Civil Code, and the other party's performance obligation in this case is under the jurisdiction of the Seoul Eastern District Court, which is the competent court of the domicile of the re-appellant. Thus, the above judgment of the court below is erroneous in the misapprehension of legal principles as to the performance of obligation in Article 8 of the Civil Procedure Act.

3. Therefore, the order of the court below is reversed, but it is recognized that the case is sufficient to make a direct decision by the Supreme Court. As seen above, the lawsuit of this case is under the jurisdiction of the Seoul Eastern District Court, but it is obvious that the decision of the court of first instance transferred to the Jeju District Court without jurisdiction is unlawful. Thus, it is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)