[1] The meaning of "agent" under Article 109 subparagraph 1 of the former Attorney-at-Law Act

[2] The case holding that Article 109 subparagraph 1 of the former Attorney-at-Law Act is established in a case where a defendant, other than an attorney-at-law, did not take the form of "agent" in law but takes the lead in dealing with a criminal case, such as preparing and submitting a written response on behalf of Gap, and as a result, Gap agreed to collect claims against the deceased and receive part of them

[1] Article 109 subparagraph 1 of the former Attorney-at-Law Act (amended by Act No. 8991 of March 28, 2008) / [2] Article 109 subparagraph 1 of the former Attorney-at-Law Act (amended by Act No. 8991 of March 28, 2008)

[1] Supreme Court Decision 99Do2193 delivered on December 24, 199 (Gong2000Sang, 349) Supreme Court Decision 2002Do2725 Delivered on November 13, 2002 (Gong2003, 125) Supreme Court Decision 2006Do4356 Delivered on June 28, 2007 (Gong2007Do3587 Delivered on April 23, 2009)

Defendant

Defendant and Prosecutor

Attorney Kim Jong-hee

Suwon District Court Decision 2009No733 Decided November 5, 2009

The judgment of the court below is reversed, and the case is remanded to the District Court Panel Division.

1. The defendant's grounds of appeal are examined.

The Defendant alleged as the ground of appeal that the lower court erred in its fact-finding regarding the embezzlement of this case. However, since the authority to fact-finding belongs to the exclusive authority of the fact-finding court unless it goes beyond the bounds of the principle of free evaluation of evidence, it can not be found that the lower court’s judgment as to evidence went beyond the above limit in this case by comparing the lower court’s records and comparing it with the records, the argument of appeal is nothing more than criticism of matters falling under the exclusive authority of

2. Prosecutor's grounds of appeal are examined.

Article 109 subparagraph 1 of the former Attorney-at-Law Act (amended by Act No. 8991 of Mar. 28, 2008; hereinafter referred to as the "former Attorney-at-Law Act") includes cases where the act of using legal knowledge is required on behalf of the principal, or where the act of using legal knowledge is done on behalf of the principal, or where the principal actually leads the handling of a case for the lacking legal knowledge only in the external form and only he/she directly performs it (see, e.g., Supreme Court Decisions 9Do2193, Dec. 24, 199; 2002Do2725, Nov. 13, 2002).

According to the reasoning of the judgment below and the records, in the situation where Nonindicted Party 1 was prosecuted for summary proceedings in the case accused by Nonindicted Party 2, and was prosecuted for the case accused by Nonindicted Party 3 from ○○ Construction, the Defendant responded to the Defendant that he will act as an agent in connection with a criminal case, such as defect in consultation, submission of a response in the name of Nonindicted Party 1 at the face of certain expenses. After receipt of Nonindicted Party 1’s request, the Defendant prepared and submitted a written reply dated 17, 2006 and January 16, 2007 to the Seoul Northern District Court on behalf of Nonindicted Party 1 on behalf of the Defendant on behalf of Nonindicted Party 4 on the charge of collection from Nonindicted Party 4 on behalf of the deceased Nonindicted Party 1 on November 206, 2006, and the Defendant did not use part of the balance of the above criminal case with the victims and submitted a written response to Nonindicted Party 1 on behalf of the deceased Party 4 on the charge of collection of the claim amount at the expense of Nonindicted Party 2014.

Nevertheless, the court below determined that the act of collection by the defendant was a violation of the Attorney-at-Law Act on the grounds that it was only the name of the defendant himself/herself and it cannot be seen as a substitute act, and there is no evidence that the defendant received or promised to receive the benefit of the defendant with respect to the act of collection by proxy in the criminal case, and that the above act of collection by the defendant was not a violation of the Attorney-at-Law Act. In this regard, the court below erred by misapprehending the legal principles on the interest and agency act

3. Scope of reversal

As seen above, the part of the judgment of the court below which violated the Attorney-at-Law Act shall not be reversed, and since the above part is in a concurrent relationship with the crime of embezzlement and Article 37 of the Criminal Act, the judgment of the court below shall be reversed in its entirety.

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.

Justices Ahn Dai-hee (Presiding Justice)