Defendant 1 and four others

Defendants

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Attorney Park So-young

Daegu District Court Decision 2007 High Court Decision 4290 Decided December 11, 2007

The part of the judgment of the court below against the Defendants is reversed.

Defendant 1 and 2 shall be punished by respective fines of KRW 1,500,000, Defendant 3 and 5 by fines of KRW 1,000,000, and Defendant 4 by fines of KRW 500,000, respectively.

In the event that the Defendants did not pay the above fines, the Defendants are confined in the Labor House for a period of 50,000 won converted into one day.

To order the Defendants to pay an amount equivalent to the above fines.

1. Summary of grounds for appeal;

A. Legal principles (Defendant 5 (Defendant of the Supreme Court Decision)

The court below found Defendant 5 guilty on the ground that Defendant 5 displayed a divorce, which is the affairs of a certified judicial scrivener, at the entrance of the office of a certified judicial scrivener, to the effect that he/she performed the affairs of a certified judicial scrivener for the purpose of making profits. However, the court below erred by misapprehending the legal principles on the scope of affairs of a certified judicial scrivener, and thereby convicted the above Defendant, by misapprehending the legal principles on the scope of affairs of a certified judicial scrivener, inasmuch as he/she may prepare documents for divorce pursuant to Article 2 of the Administrative Judicial Act and submit the documents prepared to an administrative agency. Thus, it cannot be deemed that

B. Unreasonable sentencing (defendants)

Each sentence sentenced by the court below to the defendants (the fine of KRW 3 million for each of the defendants 1 and 2, the fine of KRW 2 million for each of the defendants 3 and 5, and the fine of KRW 1 million for each of the defendants 4) is too unreasonable.

2. Judgment of party members

A. Judgment on Defendant 5’s assertion of misapprehension of the legal principle

Article 2(1) of the Certified Judicial Scriveners Act provides that a certified judicial scrivener may prepare documents to be submitted to the court and the public prosecutor's office delegated by others or documents related to his/her affairs and submit them to the court and the public prosecutor's office, and judicial divorce is subject to the exclusive jurisdiction of the family court pursuant to Article 2(1) of the Family Litigation Act as a case of family litigation of Category B, and pursuant to Article 86 of the former Enforcement Rule of the Family Register Act (amended by Supreme Court Regulation No. 2119, Nov. 28, 2007) (amended by Supreme Court Regulation No. 2119, Nov. 28, 2007), in order for a divorce to be conducted by agreement, both husband and wife are present at the family court and submit an application for confirmation

Meanwhile, Article 2(1) of the Administrative Judicial Act and Article 2 of the Enforcement Decree of the Administrative Agent Act provide that a licensed administrative agent may prepare various documents such as a report on the family register submitted to an administrative agency (referring to a State agency or a local government; hereinafter the same shall apply) upon commission of another person, and may submit such documents by proxy. According to Articles 81 and 63 of the former Family Register Act (amended by Act No. 8435, May 17, 2007; hereinafter the same shall apply), where a judgment on divorce becomes final and conclusive, the person who filed a lawsuit shall report the purport to the head of Si/autonomous Gu/Eup/Myeon along with a certified copy of the judgment and a final and conclusive certificate within one month from the date the judgment becomes final and conclusive. Thus, the preparation and submission of a declaration on divorce by judicial divorce can be done by a licensed administrative agent.

As above, in order to proceed with judicial divorce, it is necessary to confirm the court's judgment, to proceed with a divorce by agreement, and the court's declaration of divorce by the judgment must be an administrative agency. Thus, the affairs related to divorce are mixed with the affairs of a certified judicial scrivener and an administrative agent. However, according to the evidence duly adopted and examined by the court below, it can be acknowledged that Defendant 5 operated the office of a certified judicial scrivener in Daegu-gu (Segu omitted) where the Daegu District Court is located and displayed only "Divorce" at the entrance. Thus, in the case of civil petitioners whose scope of affairs is not clearly known, it can be deemed that Defendant 5 has expressed that the identification of divorce is easy to mislead the certified judicial scrivener as being able to perform the affairs of a certified judicial scrivener, such as the preparation and submission of a written complaint, at the office of the certified judicial scrivener and the administrative agent, and according to each of the above evidence, it is reasonable to deem that Defendant 5 has the purpose of handling the affairs of a certified judicial scrivener with the above indication as well as the above affairs of a certified judicial scrivener.

B. Judgment of the court below on the part on Defendant 1

In the first instance trial, the prosecutor filed an application for changes in the indictment with respect to Defendant 1 among the facts charged in the instant case, and since this court permitted changes in the subject matter of the trial, the part against Defendant 1 among the judgment below cannot be maintained further.

C. Determination on the assertion of unfair sentencing by Defendant 2, 3, 4, and 5

In light of the above facts, the defendants displayed an indication corresponding to the affairs of a certified judicial scrivener on the entrance, etc. for the purpose of gaining profits. In particular, the remaining defendants except the defendants 5 prepared documents to be submitted to the court or prosecutor's office, which is the affairs of a certified judicial scrivener, or obtained unfair profits on behalf of them, and the defendants appear to have committed such act even though they are well aware of the fact that it constitutes a crime of violation of the Certified Judicial Scriveners Act, and actually, the defendants 4 and 5 had the records of punishment for the same crime. In light of the above facts, it is difficult to view that the punishment of the court below is excessive. Meanwhile, the defendants did not have any significant profits from the violation of the Certified Judicial Scriveners Act. Meanwhile, the defendants handled the affairs of a certified judicial scrivener for reasons such as business difficulties while operating the office of a certified judicial scrivener, etc., and there are circumstances that can be considered in light of the fact that the defendants committed the crime in this case, the circumstances of the crime in this case, the defendants' age, age, sex, occupation, and circumstances, etc.

3. Conclusion

Therefore, the part of the judgment below against Defendant 1 among the judgment below is reversed ex officio pursuant to Article 364(2) of the Criminal Procedure Act, and since the appeal by Defendant 2, 3, 4, and 5 is well-grounded, the part against the above Defendants among the judgment below is reversed pursuant to Article 364(6) of the Criminal Procedure Act, and it is again decided as follows after pleading.

The summary of the facts constituting an offense and evidence acknowledged by the court is as follows: (a) of Article 2-2-b) of the facts constituting an offense at the time of original trial; (b) of the facts constituting an offense at the time of the original trial; (b) from around July 2004 to around August 7, 2006, one copy of the complaint submitted to the family branch of the Daegu District Court upon Nonindicted Party 1’s request from the above office; and (c) from that time, 70,000 won was received at the commission; and (d) from that time, the preparation of documents, such as the 138 complaint, by proxy until August 7, 2006; and (e) the total fee of KRW 6,570,00,00 as stated in the [Attachment 138 complaint, and (e) the document is changed to that of a certified judicial scrivener as a business; and (e) the statement of the court below mentioned in [Attachment 2] attached Table 2-2 (2) as stated the summary of the prosecutor’s protocol as follows 361.

1. Article relevant to the facts constituting an offense and the selection of punishment;

(a) Defendant 1, 2, 3, and 4: Each of the provisions of Article 74(1)1, Article 3, and Article 74(1)2 (each of the provisions of Article 74(1)2 of the Certified Judicial Scriveners Act;

B. Defendant 5: Article 74 (1) 2 of the Certified Judicial Scriveners Act (Selection of Fine)

1. Aggravation for concurrent crimes (defendants 1, 2, 3, 4);

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Code

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Code

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Judges Park Jong-soo(Presiding Judge)