Appellant

this Court Order 2004Mo44 dated April 13, 2005

The appeal of this case is dismissed.

1. Basic facts

According to the records, the following facts are recognized.

A. On March 26, 2004, the appellant, as a certified judicial scrivener, established a certified judicial scrivener office under the name of "(title omitted) office of Gangdong-gu Seoul Sung-gu (hereinafter omitted)," and registered his/her business as "(name omitted)," "a certified judicial scrivener office of Gangdong-gu (hereinafter omitted)," "a certified judicial scrivener office of Gangdong-gu (hereinafter omitted)," "a certified judicial scrivener office of Gangdong-gu")," "a certified judicial scrivener office of Gangdong-gu (hereinafter omitted)," "a type of business", "a certified judicial scrivener", and a business registration number of the place of business" (hereinafter omitted).

B. After the registration of the above business entity, the appellant has a personal and physical facility in the above office and continuously and repeatedly prepared documents to be submitted to the court, the prosecution, etc. on behalf of an unspecified number of clients, or provided legal advice and other services.

C. On June 16, 2004, the appellant filed an application for registration of establishment of a trade name with the name of a certified judicial scrivener office (title omitted) under Article 2004-0871922, which was received at the commercial registry office of this court, by indicating the type of business as “(name omitted)’s office,” “preparation of documents to be submitted to the court and the prosecution,” etc. (hereinafter “application for registration of this case”). However, on June 21, 2004, the registrar of the registry office rejected the application for registration of this case by applying Article 159 subparag. 2 (where the case is not a matter to be registered) of the Non-Contentious Case Litigation Procedure Act, on the ground that the appellant’

D. On April 13, 2005, upon the appellant’s filing of an objection, the court below dismissed the appellant’s objection on the ground that the appellant’s performance of duties as a certified judicial scrivener on April 13, 2005 is not a commercial activity for profit, and thus the appellant cannot be a merchant.

2. The assertion and judgment

A. Appellant's assertion

Since the appellant is equipped with human and material facilities to handle the affairs of certified judicial scrivener by leasing his/her office and continuously and repeatedly provide legal services to unspecified clients for profit-making purposes, he/she is deemed to be a constructive merchant under Article 5(1) of the Commercial Act, i.e., a "person who operates his/her business in a merchant manner through stores or other similar facilities," and the decision of the court below that denied the merchant nature of a certified judicial scrivener on the ground that there is no commercialability for the affairs of a certified judicial scrivener on the ground

(1) Unlike the Attorney-at-Law Act, the Certified Judicial Scriveners Act does not require a high level of public interest unlike the duties of a lawyer, and thus, the performance of duties by a certified judicial scrivener should be regarded as commercial activities.

(2) The Pharmaceutical Affairs Act also prohibits pharmacists or herb pharmacists from refusing to dispense drugs, and in light of the fact that the registration of a pharmacist’s trade name is recognized even though the Association of Pharmacists or the Government has recognized the registration of a pharmacist’s trade name, the prohibition of refusing to accept the delegation under Article 20 of the Certified Judicial Scriveners Act or the supervisory regulations under Article 32 of the same Act cannot serve as the grounds for denying

(3) In light of the fact that Article 33 of the Certified Judicial Scriveners Act provides that the registration of a trade name can be made by recognizing a joint corporation of a certified judicial scrivener, denying the merchant of a certified judicial scrivener individual is unfairly discriminated against natural and legal persons.

B. Determination

(1) In a case where a professional such as a certified judicial scrivener, etc. is equipped with stores and other similar facilities in performing his own duties by utilizing his expertise and actually performs his duties continuously and repeatedly for profit-making purposes, such professional shall be deemed as a constructive merchant under Article 5(1) of the Commercial Act, and whether to apply the Commercial Act to his duties shall be determined in terms of the overall legal order including a special law regulating the duties of the relevant professional, as well as the Commercial Act.

(2) With respect to the affairs of a certified judicial scrivener, the Certified Judicial Scriveners Act provides that "a person who is not a certified judicial scrivener shall perform the affairs specified in the following subparagraphs," and provides each subparagraph (1) to the court and the prosecutor's office, (2) preparation of documents related to the affairs of the court and the prosecutor's office, (3) preparation of registration and other documents necessary for application for registration, (4) proxy for registration and deposit, (5) representation of an application for consultation on the acquisition of property in an auction case under the Civil Execution Act, the National Tax Collection Act and other public auction cases under the National Tax Collection Act and other Acts and subordinate statutes, (1) proxy for submission of documents under the above subparagraphs (Article 2), (3) proxy for submission of documents under the above subparagraphs shall not be allowed to use the affairs specified in Article 2 as a business, and (3) other persons than a certified judicial scrivener shall be allowed to use the name of the certified judicial scrivener or a similar name to be a certified judicial scrivener (Article 4 and 5). In addition, when a certified judicial scrivener intends to perform affairs of a certified Judicial Scriveners, he shall not receive remuneration from the certified Judicial Scriveners Association (1).

(3) The above provisions of the Certified Judicial Scriveners Act shall be deemed to be a provision under the premise that the duties of a certified judicial scrivener are essentially different from those of a merchant's business for the original purpose of freely adding profits due to high level of public nature. Although the Certified Judicial Scriveners Act does not expressly stipulate fundamental rights protection, public nature regulations, and restriction on holding concurrent offices, unlike the Attorney-at-Law Act, the duties of a certified judicial scrivener shall not be interpreted as not recognizing the public nature or allowing a free profit-making tool.

(4) Also, the provisions, such as strengthening the requirements for acquiring qualifications, limiting part of freedom of business, and subject to supervision by other institutions for public purposes, may partially similar acts necessary to restrict public interest purposes, such as the Pharmaceutical Affairs Act. However, since the Act on certain occupational categories exists, the merchant nature of workers engaged in such occupational categories is not all denied, and whether a merchant is recognized shall be comprehensively determined from the normative perspective of the overall legal order. Accordingly, such individual provisions are removed, and the restriction provisions for public interest purposes in other occupational categories allowing mutual use are partly similar to the provisions of the Certified Judicial Scriveners Act, it cannot be deemed that a pharmacist, etc. and a certified judicial scrivener unfairly discriminates with other occupational employees permitted to use.

(5) In addition, although a natural person and a corporation both are recognized as having the same legal capacity, a natural person and a corporation may have an essential difference up to their birth, activities, and extinguishment, taking into account the difference in the size and importance of the work performed by a natural person, both of the Certified Judicial Scriveners Act and the Attorney-at-Law Act require more strict requirements for establishing a joint corporation of certified judicial scriveners or a law firm. The joint corporation of certified judicial scriveners requires practical application of the provisions of the Company Act for transparent decision-making and distribution of profits, etc. In the case of a corporation under Article 5 of the Commercial Act, the requirements of the company's nature such as recognizing the company as a merchant and recognizing the company as a merchant, etc., and the Attorney-at-law also has a way to use the trade name only in a corporation like the Act on Certified Judicial Scriveners, in light of the fact that the provisions of the unlimited partnership under the Commercial Act apply mutatis mutandis to a corporation, it cannot be said that it unfairly discriminates between a corporation and an individual.

(6) Therefore, even if a certified judicial scrivener has similar facilities and actually performs the duties of a certified judicial scrivener such as continuously and repeatedly accepting a litigation case with the main purpose of profit-making, a certified judicial scrivener shall not be deemed to be a "person who conducts business by merchant means" under the current legal order, and thus, a certified judicial scrivener shall not be deemed to be a constructive merchant under Article 5 (1) of the Commercial Act in relation to his own duties and activities.

3. Conclusion

Therefore, the decision of the court below that dismissed the appellant's objection to the same purport is just, and it is dismissed as the appellant's appeal is without merit.

Judges Kim Jong-tae (Presiding Judge)