(영문) 대법원 2016.5.27.선고 2016다7166 판결

1. Article 90 subparagraph 2 of the former Attorney-at-Law Act (amended by Act No. 6207, Jan. 28, 200; hereinafter referred to as the "former Attorney-at-Law Act") provides that Article 90 subparagraph 2 of the former Attorney-at-law Act (amended by Act No. 6207, Jan. 28, 200; hereinafter referred to as the "former Attorney-at-law Act") shall punish a person who handles or arranges the act of appraisal, representation, arbitration, reconciliation, solicitation, legal consultation, preparation of legal documents, or other legal services with respect to the case of litigation, non-contentious case, family conciliation, request for examination or review, or other administrative appeal or appeal to a third party, or with respect to other general legal cases handled by an investigation agency or by an investigation agency established under the Acts and subordinate statutes, and Article 109 subparagraph 1 of the former Attorney-at-law Act (amended by Act No. 6207, Apr. 27, 201) provides that the legal act for the purpose of acquiring under the same Act shall be anti-legal.

2. According to the judgment below and the record, the following facts are recognized.

A. From January 1, 1996 to October 1997, the Defendant loaned approximately KRW 153,740,000 to O and S married couple, and then filed a complaint against S married couple as fraud. 0 and S were indicted on the charge of fraud against the Defendant. At the first instance court on June 17, 199, the Defendant was found guilty of some victims’ fraud, but the Defendant was acquitted on the part of KRW 78,140,000 borrowed money against the Defendant.

B. On September 25, 1998, the Defendant approved the Plaintiff on May 8, 1997 that the Defendant owed KRW 60 million to the Plaintiff. The Defendant paid KRW 2.5 million to the Plaintiff in installments on May 8, 2001; KRW 20 million on December 30, 2001; KRW 30 million on December 30, 2002; and KRW 5,662 meters on December 30, 202 (hereinafter “the forest land in this case”); and KRW 30 million on December 30, 200, the Defendant prepared a notarial deed (hereinafter “the notarial deed in this case”). The Plaintiff received KRW 30 million in the auction procedure for the forest in this case, and returned KRW 30 million to Q Q.

D. On April 2, 2004, the Defendant made and delivered a loan certificate stating that the Plaintiff shall pay KRW 5 million to the Plaintiff according to the instant notarial deed and each letter, and that “the Defendant shall borrow KRW 25 million from the Plaintiff as to the remainder of KRW 25 million, there is no interest interest, and the date of repayment shall be paid at the time of normal sale of forest land owned by the Defendant.” (hereinafter “the loan certificate of this case”).

E. After that, the forest land of this case was divided into seven parcels, and the Defendant sold some of them, and a part of them was sold in a voluntary auction procedure and disposed of by November 2014.

3. A. The court below held that the agreement by the defendant to pay KRW 25 million to the plaintiff based on the loan certificate of this case constitutes an anti-social legal act contrary to Article 109 of the Attorney-at-Law Act, which is a mandatory provision, since the plaintiff, not an attorney-at-law, was formed in return for the plaintiff to handle the defendant'

The judgment was determined as follows.

B. However, we cannot accept the judgment of the court below for the following reasons.

1) According to the reasoning of the judgment below, the defendant requested a indecent plaintiff to help and receive the loan to the non-exclusive plaintiff. The plaintiff requested 30 million won in consideration of the plaintiff's solicitation to allow the plaintiff to be detained and to prepare legal documents. The defendant prepared and executed the notarial deed of this case. On April 2, 2004, the defendant sought 30 million won in consideration of the notarial deed of this case and the notarial deed of this case and prepared the loan certificate of this case as to the remaining 25 million won in consideration of the plaintiff's notarial deed of this case. However, since the preparation of the notarial deed of this case by the plaintiff, it does not include any specific act among the acts stipulated in Article 90 subparagraph 2 of the former Attorney-at-Law Act, and whether the plaintiff was actually bound by the plaintiff's solicitation, and whether the defendant recovered the loan from the 00 couple.

2) If there was no detention of 0 days even if the Plaintiff requested, or if the Defendant did not collect the loan from the husband and wife, the Defendant did not achieve the purpose of preparing the instant notarial deed at all. At the time five years have passed thereafter, the Defendant’s assertion that the Defendant paid part of the Plaintiff’s failure to perform the act of violating the Attorney-at-Law Act at the time of the lapse of five years thereafter, and that the Plaintiff prepared the instant loan certificate with respect to the remainder is difficult to believe in light of the empirical rule. Nevertheless, the lower court erred by failing to exhaust all necessary deliberations and by misapprehending the facts against the rules of evidence, which affected the conclusion of the judgment, that the agreement of April 2, 2004, which decided that the Defendant would pay the Plaintiff KRW 25 million based on the instant loan certificate constitutes an anti-social legal act and thus null and void.

4. Conclusion

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.