2016Guhap62689. Revocation of a disciplinary decision

Ma-○

Attorney Disciplinary Committee of Ministry of Justice

September 27, 2016

October 13, 2016

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit are assessed against the Plaintiff.

On March 29, 2016, the Defendant revoked the Defendant’s three-month disciplinary decision of suspension from office against the Plaintiff on March 29, 2016 (see, e.g., “F., Supreme Court Decision 2000Do354, Mar. 29, 2015”).

1. Circumstances of the decision on disciplinary action;

A. The plaintiff is an attorney-at-law belonging to the Seoul Bar Association.

B. On May 11, 2015, the Korean Bar Association Disciplinary Committee rendered a decision on disciplinary action against the Plaintiff for six months of suspension from office on the ground that the Plaintiff violated the duty to maintain dignity as an attorney-at-law under Article 24(1) of the Attorney-at-Law Act, the prohibition of providing unfair benefits among the code of ethics of attorneys-at-law (Article 44), and the provision as an attorney-at-law (Article 53).

A person shall be appointed.

A person shall be appointed.

C. The Plaintiff filed an objection against the decision of disciplinary action by the Korean Bar Association Disciplinary Committee. On March 29, 2016, the Defendant: (a) the Plaintiff’s act stated in the grounds for disciplinary action on March 29, 2016 constitutes a violation against the attorney’s duty to maintain dignity; (b) however, in light of the fact that the Plaintiff agreed smoothly with Park ○○, the suspension period of six months is excessive; and (c) the Plaintiff revoked the above disciplinary action and rendered a disciplinary decision against the Plaintiff during three months of suspension from office (hereinafter “instant disciplinary decision”).

【Ground for recognition】 Facts without dispute, Gap evidence No. 1 and the purport of the whole pleadings

2. Whether the instant disciplinary decision is lawful

A. Summary of the plaintiff's assertion

1) Absence of grounds for disciplinary action

The Plaintiff, as his defense counsel at the appellate court of the relevant criminal case, prepared a promissory note No. 200, and agreed with Park Jong-○, the complainant, but refused to pay the promissory note after the suspension of execution, and filed a lawsuit against Park Il-○, cannot be deemed to have violated the duty to maintain dignity as a lawyer, since it is the exercise of the right to protect the legitimate property rights of the Plaintiff and the largest ○○○○○○○, thereby violating the duty to maintain dignity as a lawyer. Therefore, the instant disciplinary decision does not contain any part of the grounds for the disciplinary action [the Plaintiff] is also the main note that the foregoing act does not violate the provisions on the prohibition of offering unfair profits (Article 44), and the Regulation on Attorneys-at-law (Article 53), among the Rules on Ethics before Ethical Practice, as seen earlier, since the Defendant did not take it as grounds for the disciplinary action. Accordingly, the Plaintiff’s assertion is not separately determined.

2) A deviation from and abuse of discretionary power;

In light of all circumstances, the amount of money and valuables paid to the attorney office ○○○ and the competent ○○○○ in return for mediating the acceptance of the case, and the Plaintiff was withdrawn from the petition under the agreement with the said ○○○○, a petitioner, and compared to other disciplinary cases, the determination of the disciplinary decision of this case was extremely unreasonable and contrary to the sentencing decision of this case, and thus, the disciplinary decision of this case was harshly harsh to the Plaintiff, thereby deviating from and abusing the discretion.

(b) Relevant statutes;

As shown in the attached Form.

C. Determination

1) Whether grounds for disciplinary action exist

The following facts are not disputed, or acknowledged by Gap evidence 17-1, 2, 28-1, Eul evidence 1-1, 2-2, and Eul evidence 9 and the purport of the whole pleadings.

A) In the first instance of the relevant criminal case, ○○○ and ○○○○, his/her defense counsel asserted not guilty of fraud, but the Seoul Eastern District Court (2012 high group 2799, 2013 group 456 (merger)) declared guilty on June 27, 2013 and filed a lawsuit against the said conviction.

B) On September 3, 2013, the day immediately preceding the first trial date of the appeal related to the relevant criminal case, the Plaintiff, an attorney at ○○○○, prepared and issued a written agreement stating that “I will not want to be subject to criminal punishment against ○○○○” on September 2, 2013, preparing a promissory note No. 300 million won in face value, and on November 2, 2013, the due date (hereinafter “No. ○○”) and “I will not want to be subject to criminal punishment against ○○○.”

C) On September 13, 2014, the appellate court of the relevant criminal case reversed the first instance judgment sentenced to imprisonment with labor for the maximum ○○○ on the first day of trial, and sentenced to imprisonment with labor for one year and six months, and three years of suspended execution, and the highest ○○ was released on the same day.

D) However, the highest ○○ who asserted the innocence was aware of the Plaintiff’s failure to present the innocence argument at his own discretion on the wind that the Plaintiff had agreed with Park○○.

E) Upon the arrival of the due date of a promissory note, the Plaintiff filed a lawsuit of demurrer (Seoul Central District Court 2013Gahap54635) against Park○○, asserting that Park○○ had the right to claim damages against Park○○, due to Park○’sless accusation of Park○, the maximum ○○ or new Park had the right to claim damages against the Plaintiff’s property, and that it offsets the Plaintiff’s claim against Park○○○’s right to claim for a promissory note (Seoul Central District Court 2013Gahap54635).

F) Accordingly, Park○-○ appointed an attorney-at-law as an attorney in a lawsuit of demurrer and responded to the Plaintiff’s claim.

G) In a claim objection case, the Plaintiff rendered a judgment dismissing the Plaintiff’s claim on the grounds that the Seoul Central District Court rendered a judgment dismissing the Plaintiff’s claim on July 9, 2014, on the grounds that the obligation of promissory notes based on the instant official document exists with respect to the least ○○○’s obligation to compensate for damages, or that the least ○○○ or the newly increased park has a damage claim against ○○○○. The Plaintiff appealed against the above judgment, but the withdrawal of the appeal was terminated on March 20, 2015.

According to these facts, it is reasonable to view that the Plaintiff did not want to reach an agreement with the least ○○ in the dispute of innocence but did not obtain his/her consent, and that ○○ obtained favorable results, such as release upon a suspended sentence of execution, by submitting the written agreement to the appellate court of the relevant criminal case, and the Plaintiff did not pay the agreed amount to Park○, unlike the original promise, even though ○○ obtained favorable results, such as release by being sentenced to a suspended sentence of execution, and that ○○ was not paid the agreed amount to Park○, and that ○○ was allowed to waste the litigation costs and time without any reasonable ground to avoid the payment. Accordingly, the Plaintiff’s act constitutes an act of losing the dignity as an attorney-at-law, and therefore, this part of the disciplinary decision of this case has the grounds for disciplinary action.

2) Whether the discretionary authority is deviates or abused or not

In light of the above facts and the overall purport of the relevant Acts and subordinate statutes and arguments, the following circumstances are revealed: ① an attorney-at-law requires high level of ethics and social responsibilities in light of his social status and role; ② an act of offering money and valuables in consideration of acceptance of the case is not only contrary to the attorney-at-law’s duties with high public nature, but also a practice that should be proclaimed in the legal profession as it seriously undermines the public nature and reliability of the attorney-at-law; ② an act of raising an objection against the complainant by evading the payment in favor of the client, who was sentenced to favorable judgment by the client, and raising an objection suit against the complainant upon the client’s refusal of the payment obligation; ③ an attorney-at-law expressed his will not be able to have any disciplinary action against the Defendant in consideration of the purport of disciplinary action against the attorney-at-law system, the disciplinary action against the Plaintiff’s violation of disciplinary action, suspension from office, and disciplinary action against the Plaintiff, and thus, the Plaintiff still appears to have been objectively agreed upon by the disciplinary committee.

D. Sub-committee

The same purport of the instant disciplinary decision is legitimate, and the Plaintiff’s assertion disputing the instant disciplinary decision is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judgment of the presiding judge;

Judges Kim Jong-Un

Judges Kim Tae-won

Relevant statutes

▣ 변호사법

Article 24 (Duty to Maintain Dignity, etc.)

(1) No attorney-at-law shall commit any act detrimental to his/her dignity.

Article 90 (Types of Disciplinary Action)

Discipline against attorneys-at-law shall be five kinds as follows:

1. Permanent expulsion;

2. Expulsion;

3. Suspension from office for not more than three years;

4. Fines for negligence not exceeding 30 million won;

5. Reprimand;

Article 91 (Grounds for Disciplinary Action)

(1) The grounds for the disciplinary action falling under subparagraph 1 of Article 90 shall be as follows:

1. A person who is sentenced to imprisonment without prison labor or any heavier punishment on at least two occasions in connection with his/her duties as a lawyer (including a suspended sentence);

C) If the sentence becomes final and conclusive (except in the case of negligence)

2. A person who is subject to disciplinary action of suspension from office or heavier under this Act on at least two occasions and has another reason for disciplinary action under paragraph (2);

(2) If it is deemed substantially inappropriate to perform the duties of a lawyer;

(2) The grounds for disciplinary actions provided for in subparagraphs 2 through 5 of Article 90 shall be as follows:

1. Where he/she violates this Act;

2. Where it violates the regulations of the affiliated local bar association or the Korean Bar Association.

3. When he commits an act detrimental to his dignity as an attorney-at-law, regardless of his duties inside and outside.