[1] The meaning of "agent" under Article 109 subparagraph 1 of the Attorney-at-Law Act that prohibits a person who is not an attorney-at-law from participating in the handling of legal affairs

[2] The validity of an agreement under which a person representing a lawsuit by violating Article 109 subparagraph 1 of the Attorney-at-Law Act would return the litigation cost paid by him/her after the completion of the lawsuit (in principle, invalid)

[3] The case affirming the judgment below which held that in case where Gap corporation, which was an apartment management company Gap, had to proceed with a lawsuit claiming a warranty bond filed by the council of occupants' representatives by paying the costs of lawsuit on behalf of the plaintiff, the act of Gap corporation constitutes "agent" prohibited by Article 109 subparagraph 1 of the Attorney-at-Law Act, and the agreement that Gap corporation's council of occupants' representatives shall return the costs of lawsuit paid by Gap corporation after the completion of the lawsuit

[1] In light of the purport of Article 109 subparagraph 1 of the Attorney-at-Law Act that prohibits a person, other than an attorney-at-law, from participating in the handling of legal affairs, the term "agent" under the above Article includes not only the legal representative dealing with legal affairs in the name of his/her agent, but also the case where he/she intends to use legal knowledge on behalf of his/her agent, or to generate the same effect as the case where his/her agent actually performs without the form of representation because he/she takes the lead of the handling of cases on behalf of his/her own for a person with no legal knowledge or without external knowledge.

[2] Article 109 subparagraph 1 of the Attorney-at-Law Act is a mandatory law, and a juristic act aimed at acquiring profits as provided in Article 109 of the same Act has the nature of anti-social and its judicial effect is denied. Moreover, an act of a person representing a lawsuit in violation of Article 109 subparagraph 1 of the Attorney-at-Law Act by paying litigation costs on behalf of the person who paid litigation costs on behalf of the person in violation of Article 109 subparagraph 1 of the Attorney-at-Law Act merely an act incidental to the act of acquiring profits by representation, and thus, an agreement to return litigation costs paid on behalf of the person in question after the completion of the lawsuit, barring any special circumstance, shall be deemed null and void as it constitutes a juristic act

[3] In a case where Gap corporation, which is an apartment management trustee, had the council of occupants' representatives proceed with the lawsuit claiming the warranty bond against the apartment complex defect repair contractor by paying the lawsuit expenses at interest without interest, the case affirming the judgment below which held that Gap corporation's act of taking part in the lawsuit at issue constitutes "agent" prohibited under Article 109 subparagraph 1 of the Attorney-at-Law Act, and the agreement that Gap corporation's council of occupants' representatives should return the litigation expenses paid by it after the completion of the lawsuit is null and void as a juristic act against social order.

[1] Article 109 subparagraph 1 of the Attorney-at-Law Act / [2] Article 109 subparagraph 1 of the Attorney-at-Law Act, Article 103 of the Civil Code / [3] Article 109 subparagraph 1 of the Attorney-at-Law Act, Article 103

[1] [2] Supreme Court Decision 2009Da98843 Decided February 25, 2010 / [1] Supreme Court Decision 99Do2193 Decided December 24, 199 (Gong2000Sang, 349) Supreme Court Decision 2002Do2725 Decided November 13, 2002 (Gong2003Sang, 125) / [2] Supreme Court Decision 86Da1802 Decided April 28, 1987 (Gong1987, 881)

Tae Forest Housing Management Co., Ltd. (Law Firm LLC, Attorneys Park Jong-sik et al., Counsel for the plaintiff-appellant)

동원데쟈뷰아파트 입주자대표회의 (소송대리인 법무법인 정언 담당변호사 김치련)

Seoul Southern District Court Decision 2012Na9589 decided February 21, 2013

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

In light of the purport of Article 109 subparagraph 1 of the Attorney-at-Law Act that prohibits a person, other than an attorney-at-law, from participating in the conduct of legal affairs and maintains the lawyer system, the term "agent" under the above Article 109 subparagraph 1 of the Attorney-at-law Act includes, as a matter of course, cases where not only a legal representative dealing with legal affairs under the name of his/her agent, but also an act necessary for using legal knowledge on behalf of himself/herself, or where he/she takes the same effect as his/her agent without taking the form of representation because he/she actually takes the lead in the process of a case without legal knowledge or takes the lead in the process of the case on behalf of himself/herself (see Supreme Court Decisions 9Do2193, Dec. 24, 199; 2002Do2725, Nov. 13, 2002).

According to the reasoning of the judgment of the court below and the judgment of the court of first instance partially accepted by the court below, the court below acknowledged the following facts: ① the plaintiff, a trustee of the management of the apartment of this case, ordered the defendant to proceed with the lawsuit claiming the warranty bond against the warranty bond company of this case by paying all the litigation costs as interest-free; ② at the time, the plaintiff and the defendant, upon the plaintiff’s request, affixed the documents related to the above lawsuit at the plaintiff’s request and completed the attorney-at-law fees; and the plaintiff paid the judgment fees when the judgment fees are deposited into the plaintiff, the defendant shall not be demanded to pay them; upon the termination of the above lawsuit, the defendant guaranteed the defect repair construction right, the contract right to select the contractor and the trust contract for the management of the apartment of this case; ③ the plaintiff agreed to pay 35% of the judgment fees as penalty if the above matters are violated; ③ After the plaintiff paid the litigation costs in lieu of the conciliation of the above lawsuit, the plaintiff bears the litigation costs and actually appointed an attorney-at-law and led the plaintiff in the lawsuit.

In light of the above legal principles and records, the above judgment of the court below is just, and contrary to what is alleged in the grounds of appeal, there is no violation of the principle of free evaluation of evidence.

2. Regarding ground of appeal No. 2

Article 109 subparag. 1 of the Attorney-at-Law Act is a mandatory law, and a juristic act aimed at acquiring profits provided for in the same Act itself has the anti-social character and thus its judicial effect is denied (see, e.g., Supreme Court Decisions 86Da1802, Apr. 28, 1987; 2009Da98843, Feb. 25, 2010). Moreover, an act of substitute payment of litigation costs by a person who acts in violation of Article 109 subparag. 1 of the Attorney-at-law Act is merely an incidental act incidental to the act of acquiring profits by proxy, barring any special circumstance, the agreement to receive the substitute litigation costs after the completion of the lawsuit is deemed null and void as it constitutes a juristic act of anti-social order, and it does not change its effect.

In the same purport, the court below is just in rejecting the plaintiff's assertion that the agreement that the plaintiff paid the costs of lawsuit on behalf of the plaintiff to return them after the completion of the lawsuit, and that the defendant should pay a penalty in the event that the defendant does not give a contract for the defect repair work or the defendant does not guarantee the existence of the management contract in this case, is null and void as a juristic act of anti-social order, and thus, it is not erroneous in the misapprehension of legal principles as to the scope of invalidation of the act

3. As to the grounds of appeal Nos. 3 and 4

Examining the reasoning of the judgment below and the judgment of the court of first instance cited by the court below in light of the relevant legal principles and records, the court below is just in holding that the termination of the management contract of this case by the defendant on the ground of violating the plaintiff's duty of care, on the ground that the non-party was appointed as the representative of the defendant and the failure of trust between the plaintiff and the defendant caused the failure of trust between the plaintiff and the defendant, etc.

In addition, although the reasoning of the lower judgment did not state a specific and direct determination on the assertion that “the management fee before the termination of the instant management contract was not paid,” the lower court rejected the Plaintiff’s principal assertion on the grounds of violating the Plaintiff’s duty of care prior to the termination of the instant management contract, it can be seen that the Plaintiff’s assertion on this part was rejected in light of the overall purport of the reasoning of the judgment. Therefore, contrary to what is alleged in the grounds of appeal, the lower court did not err by failing to exhaust all necessary deliberations or by failing to exercise the right of care

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yang Chang-soo (Presiding Justice)