Defendant 1 and one other

Defendants and Prosecutor

Teara china

Law Firm Roon et al.

Suwon District Court Decision 2009Dadan930, 1593 (Joint Judgment) Decided August 13, 2010

All the judgment below against the Defendants is reversed.

Defendants are not guilty.

The summary of the judgment against the Defendants is published.

1. Summary of grounds for appeal;

A. Prosecutor (misunderstanding of facts and misunderstanding of legal principles as to Defendant 1)

The lower court rendered a judgment on April 1, 2009 against Defendant 1, on the ground that the violation of the Attorney-at-Law Act was an inclusive crime, and the res judicata of the summary order against Defendant 1 extends to the crime prior to the time of the issuance of the above summary order. The lower court rendered a judgment on the grounds of the charge of violation of the Attorney-at-Law Act from October 1, 2007 to April 1, 2009 against Defendant 1.

However, considering ① the necessity of strict group for the crime of violation of the Attorney-at-Law Act, and the unique nature of legal affairs that cannot be seen as the same as the act of business, it is reasonable to rate it as a substantive concurrent crime. The court below erred by misapprehending the legal principles, and ② even if it is considered a single comprehensive crime for household affairs, there are circumstances where it can be deemed that the criminal's intention has been renewed as of the point of time, such as the transfer of office to July 1, 2008, etc. In this case, it does not affect the res judicata effect of the above summary order for the crime after July 1, 2008. However, the court below erred by misapprehending the legal principles or misapprehending the legal principles that the court erred by finding that the res judicata effect has been affected.

B. Defendants

(1) misunderstanding of facts

The subject of responsibility and calculation with respect to the operation of the legal office of this case is Defendant 2, who is an attorney-at-law, and Defendant 1 is the chief of the legal office of this case and engaged in legal affairs under the direction and supervision of Defendant 2. Thus, it does not constitute violation of the Attorney-at

2) Unreasonable sentencing

Even if the Defendants were guilty, the sentence of the lower court against the Defendants (Defendant 1: Imprisonment with prison labor for a year and six months, additional collection, Defendant 2: Imprisonment for a year, suspended execution for a year, two years of suspended execution, community service for a period of 280 hours) is too unreasonable.

2. Determination

(a) Basic facts;

1) The relationship between the Defendants and the establishment of a legal office

A) Defendant 2 used as an election office in preparation for the election of National Assembly members on June 2004, and opened an “Nonindicted 1 Law Firm subordinate to the said law office” under Article 301 of the Act on the Establishment of a branch office located in △△△-dong, Hanam-si (i.e., the district party office was prohibited by the current law, and Defendant 2 used the said law office as an election office). From around that time to January 2006, Defendant 2 opened the said law office, from January 2006 to May 2007, the “Nonindicted 1 Law Office” and “Nonindicted 2 Law Office” from May 2007 to May 2007, and from May 2007 to June 2008, Defendant 2002: (a) opened the said law office and operated the said law office by changing the name of each of the above law offices to “Nonindicted 2 Law Firm subordinate to the said law office located in the said government office.”

B) On June 2004, Defendant 1 had been registered as the head of the election administration office at the time when Defendant 2 first opened the law office in the subordinate area, and had been registered as the legal affairs of each of the above law offices continuously from that time to that time, and had been working as the head of the office.

2) Method of operating the legal office

A) From June 2004 to April 2008, Defendant 2 started to work daily at each of the above legal offices during the election of the 18th National Assembly members of the National Assembly. On April 2008, Defendant 2 did not work regularly after having fallen from a police officer inside a political party, and Defendant 2 did not work regularly at once more than 2-3 times in the month, and Defendant 1 was reported simply on the overall affairs of Defendant 1, including the case in which each of the above legal offices is handled.

B) In each of the above legal offices, only a simple case such as registration affairs, a brief complaint or the preparation of an application by proxy is not separately submitted, but only a document preparation and receipt by the parties has been conducted as an agent.

C) The above non-indicted 2 law firm subordinate branch offices (hereinafter “the law office of this case”) processed 2,50 legal affairs in total from October 1, 2007 to May 22, 2009, including the filing of an application or a complaint, and received a total of KRW 790,185,153 in return for the handling of registration affairs, the filing of an application or a complaint, etc., and received a total of KRW 790,185,153 in return. During the above period, Defendant 2 did not have any case at all in which the attorney appointment system was inside and in the court

3) A complaint case which was the basis of the case, and the result of its handling

A) On August 208, 2008, Non-Indicted 4 was the owner of the land atHanam-si ( Address 3 omitted), and Non-Indicted 5, Non-Indicted 6, Defendant 1, and Non-Indicted 7 conspiredd with the Sungnam-si District Prosecutors' Office at the Sungnam-si Office at the Sungnam-si branch of the Seoul District Prosecutors' Office, and acquired it by letting Non-Indicted 4 transfer the 134 square meters of the above land to Non-Indicted 6 through the law office of this case, which is part of the above land, to Non-Indicted 4, and Defendant 1 and Non-Indicted 7, by deceiving Non-Indicted 4 in their roles even though they are not attorneys-at-law, shall share the above 134 square meters in order to receive the above 134 square meters of land and distribute the profits, and by preparing, submitting, and ordering the false legal counseling and various application documents, etc., Defendant 1 was accused of fraud and the Attorney-at-Law Act (Article 56410 of the Sungnam branch of this case).

B) According to the above accusation filed by Nonindicted 4, Defendant 1 and Nonindicted 7 were examined as to whether he was not an attorney-at-law and dealt with legal affairs in return, and on April 7, 2009, the prosecution’s search and seizure on Nonindicted 1 Law Firm subordinate Branch Office was conducted.

C) After completing the investigation into the above complaint case, the prosecutor prepared a written agreement on the sale of 443 square meters of the above ( Address 3 omitted) between Non-Indicted 4 and Non-Indicted 6 in collusion with Non-Indicted 7, and around January 14, 2008, at the office located in △△△△△ 301, upon the request of Non-Indicted 6, the defendant was in possession of 453 square meters of the above ( Address 3 omitted), and Non-Indicted 7 was in possession of the above 443 square meters of the above 443 square meters in the name of Non-Indicted 6 on March 20, 208, and submitted it to the Gwangju City Court for the issuance of the above complaint, and around June 3, 2008, the prosecutor received 70 million won of the above 405 square meters of the above (name 3 omitted) from Non-Indicted 6, and received 700,000 won of the above 750,000 won of the above indictment.

B. Regarding the prosecutor's grounds for appeal

1) Summary of the facts charged against the part of the lower judgment’s appeal

The defendant is a person who serves as a secretary in the branch office of Nonindicted 2 Law Firm.

The Defendant: (a) around October 1, 2007, at the request of △△△△ 301, 12, and Nonindicted Party 12, prepared a document of application for payment order and received KRW 257,740 from such Si to June 30, 2008, and (b) from July 1, 2008 to April 1, 2009, the Defendant received KRW 692,736,959 in total of commission fees in return for handling all 2,163 legal affairs, as stated in the [Attachment 2] of the judgment of the lower court, from July 1, 2008 to April 1, 2009.

Accordingly, the defendant was not an attorney-at-law and dealt with legal affairs.

2) Determination

On May 12, 2009, the court below rejected the prosecutor's assertion that there was a renewal of criminal intent due to the relocation of the office as of July 1, 2008, on the ground that the above part of the facts charged was a crime for which a summary order was finalized on May 12, 2009 and the facts charged for this part of the facts charged before it became final and conclusive, and the facts charged for this part of the facts charged are a comprehensive crime. The court below rejected the prosecutor's assertion on the ground that there was a renewal of criminal intent due to the above relocation of the office as of July 1, 2008. In comparison with the records and related legal principles, the judgment of the court below is just and correct, and there is no error of law by mistake of facts or misunderstanding of legal principles which affected the conclusion of the judgment.

Therefore, the prosecutor's above assertion is without merit.

C. As to the defendants' assertion of mistake of facts

1) Summary of the facts charged against the Defendant

A) Defendant 1

The defendant is a person who serves as a secretary in the branch office of Nonindicted 2 Law Firm.

On April 2, 2009, the Defendant, at the request of ○○○○○○ building 201 located in Hanam-si ( Address 1 omitted), prepared a provisional attachment application document and received KRW 165,00 in terms of fees, and received KRW 165,00 from around May 22, 2009 as shown in the attached Table 1 of the judgment of the lower court from around 387 to around May 22, 2009, received KRW 97,44,194 in return for accepting and handling 387 legal affairs as shown in the attached Table 1 of the judgment of the lower court.

Accordingly, the defendant was not an attorney-at-law and dealt with legal affairs.

B) Defendant 2

The Defendant is the representative attorney of Nonindicted 2 Law Firm.

In the 17th National Assembly election, the Defendant went out as a candidate for the 18th National Assembly member in the 17th National Assembly member, but failed to be registered as a preliminary candidate for the same area of the same area of the 18th National Assembly member, but he was failed to obtain the 10th National Assembly member. In the process, Defendant 1, who works as a secretary at the subordinate branch office of Nonindicted 2 Law Firm, was assisting the Defendant as the head of the election secretary office.

The Defendant maintained his name in the Republic of Korea, while serving as a political purpose to raise the level of nomination while maintaining his/her office, and entrusted Defendant 1 with Defendant 1 with the operation of his/her office under his/her responsibility and calculation in order to compensate for his/her contribution to the election campaign process.

Defendant 1, around October 1, 2007, prepared an application document for payment order with the Defendant’s official seal affixed at the request of △△△△ 310, and Nonindicted 12, and received KRW 257,740 from that Si to June 30, 2008, and received KRW 200,000 in the same place from that Si from July 1, 2008 to May 22, 2009, and received KRW 790,185,153 in return for the acceptance of 2,50 legal affairs as shown in attached Table 2 of the judgment of the court below from July 1, 2008 to that of May 22, 2009.

Accordingly, the Defendant had Defendant 1 use the name of the Defendant so that he can handle legal affairs as above at the above date, time, and place.

2) The judgment of the court below

The court below found Defendant 1's statement to the effect that Defendant 1 made a confession at the time of interrogation of the suspect on March 24, 2009; ② Even according to the defendants' statement, the legal office of this case did not accept at all the civil and criminal principal case during the period specified in the facts charged; and only accepted and processed real estate registration or application cases, and made a fee only. The court below found Defendant 2's testimony to the effect that the form of acceptance of the case, which is biased in the management method of the office and specific business field, is far from ordinary attorney's office's operation, and it appears very unusual; ③ Nonindicted 7, the chief of the legal office of this case, was investigated as the suspect of the above accusation case on September 30, 208, and stated to the effect that Defendant 2 did not work well; ④ Nonindicted 8, the reason for the legal office of this case, made a statement to the effect that Defendant 2 was present at the prosecution's e-mail address from July 2007 to April 21, 2009.

3) Determination of the immediate deliberation

A) Criteria for determining whether to lend the name

In the instant case, although Defendant 1 is a member of the legal office of this case on the pretext of the defendant 1, the prosecutor handled legal affairs in exchange for money and other valuables by lending only the name of the attorney-at-law from Defendant 2 to receive the fees therefor, not attorneys-at-law. Defendant 2 had Defendant 1 use his name so that he can handle legal affairs as above. Accordingly, the Defendants were indicted for violation of Article 109 subparag. 1, Article 109 subparag. 2, and Article 34(3) of the Attorney-at-law Act.

On the other hand, in the act of opening and operating a law office under the name of a person who is not an attorney-at-law, such as employing an attorney-at-law, it is inevitable that an attorney-at-law who has lent the above name to a certain extent to participate in the establishment and operation of the law office in accordance with the purport of the employment, etc., and therefore, it is not easy to decide whether to lend the above name. However, in order to see that a person who is not an attorney-at-law establishes and operates a law office under the above name, at least the above law office is operated under the responsibility and calculation of the above name borrowed, and it should be recognized that the name borrowed person independently handled the case without being instructed and supervised

B) Whether the instant legal office was operated under the responsibility and account of a person

In full view of the following circumstances, it is difficult to readily conclude that Defendant 1 operated the instant legal office under his responsibility and calculation, and rather than that, it is reasonable to view that Defendant 2 had been operated under Defendant 2’s responsibility and accounting.

(1) First of all, according to the investigation report (report attached to the statement of transaction), the following particulars of entry into and withdrawal from the account in the name of Non-Indicted 2 Law Firm and its related account can be confirmed. Defendant 2 has made profits from the law office of this case and appropriated for expenses and election expenses to maintain his attorney-at-law and party members, and considerable amount of personal funds of Defendant 2 has been input for the operation of the law office of this case.

① On January 31, 2008, Defendant 1’s account of the National Agricultural Cooperative Federation (Account Number 1 omitted) in the name of Defendant 1 (hereinafter “Defendant 1”) opened in the course of carrying out the affairs related to the pertinent legal office was deposited with KRW 11,880,00, and KRW 264,000,00, respectively.

② Defendant 2 deposited KRW 836,50 on August 29, 2008; KRW 1,579,00 on September 1, 2008; KRW 1,112,560 on November 1, 11 of the same year; KRW 28,431,260 on November 28, 200; KRW 460,70 on December 4, 12 of the same year; and KRW 182,70 on December 18, 200 on deposit, respectively.

③ In addition, Defendant 2 deposited KRW 14,543,105 in total between March 25, 2009 and March 31, 2009, with a new bank account (Account Number 2 omitted) in the name of Defendant 2, Defendant 2, “Nonindicted 2 Law Firm,” and deposited KRW 3,100,000 in the National Bank account (Account Number 3 omitted) in the name of “Nonindicted 2 Law Firm.”

④ From January 18, 2008 to another bank account (Account Number 4 omitted), Defendant 1 deposited KRW 3,300,000,000 for public opinion poll from January 18, 2008, KRW 3,118,500,000 for promotional materials contract amount, KRW 5,000,00 for banner contract amount, KRW 3,387,000 for office rent, KRW 2,305,50 for office rent, and KRW 24,305,00 for election expenses. Since then, Defendant 2 deposited KRW 1,330,000 for the above account from February 4, 2008 to the above account amount, KRW 3,000 for promotional materials contract amount, KRW 3,118,500 for banner contract amount, KRW 5,000 for banner contract amount, KRW 3,0000,000 for Defendant 1’s above account amount.

(2) On March 5, 2009, Defendant 1 testified that “the attorney-at-law shall be responsible as he/she was delegated by the attorney-at-law at the time of his/her first interrogation,” with regard to the circumstance in which he/she led to the confession of temporary facts charged at the prosecutor’s office. However, on March 24, 2009, Defendant 1 led to the reversal of his/her statement to the effect that “the case of divorce is responsible for accepting and handling the case and operating the office” in the second interrogation by the prosecutor’s office.

However, Defendant 1, after re-afusing the above confession, has consistently denied the facts charged in the course of several investigations conducted by the prosecution, and has continuously maintained such position in the original trial and the trial court. Defendant 1 stated to the effect that “The confession made at the time of interrogation of the second suspect by the prosecution is likely to have discovered the fact of embezzlement of the attorney’s office’s proceeds and harm Defendant 2,” and that “the confession made at the time of interrogation of the second suspect by the prosecution.”

In light of the above, Defendant 1’s statement from the end of October 2007 to the NAC’s account (Account Number 5 omitted) under the name of “Non-Party 2 Law Firm,” and Defendant 1 brought about a considerable amount of money (in lieu of KRW 10 million, exceeding KRW 20 million) out of the profits of the legal office of this case as of the end of each month, and other facts can be confirmed that Defendant 2 personally brought about more than KRW 400 million by receiving fees, etc. from the clients through the account of the NACC established separately (Account Number 1 omitted). In this regard, Defendant 1 appears to have consistently stated that “this case’s legal office was only maintaining the current status, and there is no possibility that Defendant 2 would have been punished for the above crimes, such as embezzlement of money by Defendant 2 on several occasions, but there is no possibility that Defendant 1 would have made a false statement during the process of making a false statement.

(3) In addition, Defendant 2 did not seem to have been placed at a disadvantage in economic situation as much as Defendant 2 should maintain a law firm until lending his name, and there was no evidence to deem that Defendant 1 was receiving the consideration for the name lending from Defendant 1 (i.e., “Non-Party 2 Law Firm”) (i.e., KRW 12,481,308, and KRW 2 million on August 1, 2008, which was transferred from the Agricultural Cooperative’s account in the name of “Non-Party 2 Law Firm”) to Defendant 2’s personal account, based on the amount, time of office transfer, and date of remittance, the Defendants’ assertion that the difference in the lease deposit would have been paid is persuasive, and it appears that it is unreasonable to view that the above account and the “Defendant 1”’s assertion that Defendant 2 received KRW 750,000,000 from the National Agricultural Cooperative’s account in the name of “Non-Party 2 Law Firm” and that it was unreasonable to view that Defendant 2 received the above money as Defendant 2’s political activity.

C) Whether Defendant 2, an attorney-at-law, was directed and supervised

In full view of the following circumstances admitted by the lower court and the lower court based on the evidence duly admitted and investigated, even if Defendant 2 did not have any specific direction and supervision during the process of accepting and handling individual cases, and Defendant 1 did not independently handle the case without being under Defendant 2’s direction and supervision.

① Defendant 2 continued to maintain and nominate an attorney-at-law office in the Hanam City, which is one of its local districts, and maintained the attorney-at-law office at that place. At the time of being employed as an adviser-at-law of the said law firm as an adviser-at-law of the said law firm, Defendant 2 received every 20 million won from the said law firm as an adviser-at-law under the pretext of advisory fees. Thus, Defendant 2 started to devise a method of preparing expenses for maintaining the office from the said legal adviser-at-law office around January 206.

그러나, 피고인 2는 지역구 관리 및 여타의 봉사활동, 사단법인 운영 등의 대외적인 활동으로 매우 바빴기 때문에 직접 송무 업무를 하는 것은 바라지 않았고, 따라서 피고인 1로 하여금 변호사가 일일이 관여하지 않아도 되는 간단한 업무를 처리하여 사무실 유지비용을 마련해 볼 것을 지시하였다.

Since then, the legal office of this case can directly deal with registration affairs, simple collection or preparation of various applications by proxy, etc., and the attorney-at-law started to conduct only simple business affairs that do not attend the court. Although the form of acceptance of a case in particular business areas is different from the form of ordinary attorney-at-law's office's operation, it is very exceptional, and it does not seem to be completely acceptable at the time of defendant 2's situation, it can be viewed as a flick book to keep his name in order to not see economic damage even if he maintains the office's operation of the attorney-at-law.

② At the investigative agency and the court of original instance, Nonindicted 7 stated in the prosecutor’s office that “Non-Indicted 9 (Chief 7) was subject to specific business instructions from the attorney-at-law at the time of employment, but the personnel division was made at the time of employment (Evidence No. 775, 788, 862).” The above Non-Indicted 9 stated in the prosecutor’s office that “Defendant 1 was paid KRW 300,000 per month, and it was confirmed once again by Defendant 2’s attorney at the prosecutor’s office” (Evidence No. 862 of the Evidence No. 862). Defendant 1 stated in the prosecutor’s office that “Non-Indicted 7 was not subject to specific business instructions from the prosecutor’s office of this case since April 208, Non-Indicted 8 was not subject to specific business instructions from the prosecutor’s office of this case, and that it was difficult to find out the number of cases reported to the prosecutor’s office’s office of this case or the number of cases reported.”

③ Defendant 2 accepted all the litigation cases requested by the law office of this case in the name of Nonindicted 2 Law Firm, and sent them to Nonindicted 2 Law Firm, and had Nonindicted 10 Attorney-at-law, a joint representative attorney-at-law handle them (the number of cases handled by classifying Defendant 2 as “related cases” by Nonindicted 2 Law Firm, was 22 cases from around 206 to 209).

④ On April 7, 2009, Defendant 2 had Defendant 1 continue to work for hearing circumstances and taking over business affairs even after the Prosecutor’s Office seized and seized the pertinent legal office. After Defendant 1 was detained, Defendant 2 had the head of Nonindicted 7 continue to work for Defendant 1, and the head of Nonindicted 7 had an employment attorney-at-law who is operating the instant legal office, and even until now, did not directly perform transportation duties or order the employees to provide specific service instructions.

D) Sub-committee

In a criminal trial, the burden of proof for the facts constituting an offense prosecuted is to be borne by the public prosecutor, and the conviction is to be based on evidence with probative value, which makes the judge feel true beyond a reasonable doubt. Therefore, if there is no evidence to establish such a conviction, even if there is no doubt as to the defendant's guilt, it is inevitable to determine it with the benefit of the defendant.

The evidence submitted by the prosecutor in this case is insufficient to deem that the above facts charged against the Defendants were proven to the extent that there is no reasonable doubt. Although Defendant 2 was negligent in the management of the legal office of this case, such as the acceptance and handling of the case, and the management and supervision of the employees, etc. of Defendant 2's external activities as a political person, the legal office of this case, as stated in the facts charged, is not operated under the responsibility and calculation of Defendant 1, the secretary, beyond the scope of the management and supervision of Defendant 2, who is an attorney-at-law, as stated in the facts charged, and it is somewhat unusual, but it is difficult to rate them into violation of the Attorney-at-Law Act because Defendant 2 employed Defendant 1 as the secretary-at-law, and operated the office by the method of directly handling the business office at the level of the secretary-at-law, such as the registration affairs, brief collection, or preparation of various applications.

Therefore, although each of the above facts charged constitutes a case where there is no proof of crime, the court below erred by misapprehending the facts and adversely affecting the conclusion of the judgment.

3. Conclusion

Therefore, since the defendants' assertion of mistake of facts is well-grounded, the judgment of the court below against the defendants is reversed under Article 364 (6) of the Criminal Procedure Act without examining the argument of unfair sentencing, and it is again decided as follows.

The summary of this part of the facts charged against the Defendants is the same as that of the above 2-C-1. This constitutes a case where there is no proof of a crime for the same reason as that of the above 2-C-3, and thus, the Defendants are acquitted under the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment of innocence is publicly announced under Article 58(2) of the Criminal Act.

The summary of this part of the facts charged against Defendant 1 is the same as that of the above 2-B-1, and this constitutes "when a final judgment is rendered" under Article 326-1 of the Criminal Procedure Act on the same ground as that of the above 2-B-2, and thus, a judgment of acquittal should be rendered on this part. However, as long as the court acquitted Defendant 1 of the violation of the Attorney-at-Law Act as stated in Article 2-2-C (1) of the Act on the whole crime, it shall not be pronounced separately in the disposition

Judges Lee Heung-do (Presiding Judge)