현행 변호사법의 징계개시 신청권과 관련된 징계절차 규정의 문제점과 개선방안

Unlike the chief public prosecutor of a district public prosecutors’ office or the president of any local bar association, the chairperson of the Ethics Council has discretion whether to commence disciplinary action, which seems a reasonable discrimination with constitutionality. It would be appropriate to interpret Article 97-4 of the Attorney-at-Law Act to incorporate cases of submitting application to commence disciplinary action by the chairperson of the Ethics Council, especially containing fault related to a list of retired public officials and their statements of businesses, as there are no reasonable grounds to differentiate these cases from cases involving attorney-at-law retired from a public office or specific attorney-at-law. Any applicant for the commencement of a disciplinary action may, when the President of the Korean Bar Association declines his or her application for the commencement of the disciplinary action or fails to determine whether to apply for the commencement of the disciplinary action concerned even after the lapse of three months from the date on which his/her application is received, raise an objection to the Attorney Disciplinary Committee of the Korean Bar Association. In such a case, the Attorney Disciplinary Committee of the Korean Bar Association should decide whether to commence disciplinary action, and override the authority of the President of the Korean Bar Association to decide, once existed but anymore at least after the committee's action, on the case. Thus, once the case gets reviewed by the Attorney Disciplinary Committee, neither the President of the Korean Bar Association’s commencement of a disciplinary action nor subsequent decision of the Committee to dismiss the case can be allowed. The Act does not explicitly state the time period within which the Attorney Disciplinary Committee of the Korean Bar Association must decide whether to commence disciplinary action. It is advisable to amend the act to state that the Committee must make decision whether to commence disciplinary action before the lapse of three months. When considering that the Act endeavors to achieve fairness in disciplinary procedure by entitling any applicant for commencement to object to the Committee, it would be adequate to construe an applicant can object to the Attorney Disciplinary Committee of the Ministry of Justice if his or her objection is rejected by the Attorney Disciplinary Committee of the Korean Bar Association. And if the objection is sustained by the Attorney Disciplinary Committee of the Ministry of Justice, it would be advisable with regard to the legal structure of the related statutes, to allow for commencing and implementing of disciplinary action.