변호사법 제109조 제1호 위반죄에 관하여 -「실비변상」에 관한 판결례를 중심으로

Article 109 Subparag. 1 of the Attorneys-at-Law Act provides stipulations which declare the punishment of persons who did not have proper legal credentials but handled legal issues such as lawsuits or appraisals for legal cases and pursued personal interest including monetary compensation and other profits. The gist of this article lay in actual expense compensation related to obtaining profits and two Supreme Court Decisions exist that deal with these issues. These two decisions pursue positions opposite to one another with regards to the establishment of violation of the Attorneys-at-Law Act under the context of actual expense compensation. The first Supreme Court Decision states that the act of the defendant does not constitute violation because this act is considered as actual expense compensation, while the second Supreme Court Decision states that this act shall be regarded as violation based on the pretension of actual expense compensation. Therefore, we need to clarify the standard of judgment for “actual expense compensation” or “pretension of actual expense compensation.” First, with regards to the existence of the valid pretext under the context of actual expense compensation, we shall consider the possibility of acknowledging different pretexts of reward for handling legal issues and actual expense compensation as the standard of judgment. Second, when judging the pretension of actual expense compensation, the criteria to determine the intent of the defendant who could have obtained the compensation of real cost relies on the context of various circumstances provided by the second Supreme Court Decision. In order to clarify the criteria of judgment in detail, we can take an idea from legal principles of fraud and we can reach a conclusion as below if we extend the point of view of the adaptation of legal principles of fraud to actual expense compensation or pretension of actual expense compensation. First, we shall judge the defendant’s intention with respect to the pretension of actual expense compensation in accordance with the circumstances at the time when he/she received profits including money and valuables and, in principle, the basis of judging the possibility of criminal establishment shall not be affected by real cost defrayal after that time. There is an appellate court judgment that quoted the third Supreme Court Decision which is the previous judgment remanding the case of the first Supreme Court Decision. This judgment suggested a legal principle which states that, even if the defendant’s act was based on actual expense compensation, the act qualifies as a criminal offense since the defendant dealt with legal issues inhibited by the Attorneys-at-Law Act, and this judgment argued that the third Supreme Court Decision established this legal principle. However, this precedent of the appellate court is not valid because this can not be construed that the third Supreme Court Decision even declared any general principle of law with respect to actual expense compensation. Even if this interpretation is possible, this precedent is based on nothing more than a dissenting interpretation of the third Supreme Court Decision and not the judgment itself. Besides, this judgment is a total opposition to the principle of law of the first Supreme Court Decision which is the second appeal proceeding of the third Supreme Court Decision. In other words, the above appellate court judgment misinterpreted the third Supreme Court Decision, and ignored the first Supreme Court Decision. Therefore, the third Supreme Court Decision can not be construed to have declared a principal of law that is based on proper understanding of the above appellate court judgment. There are several precedents of the appellate court which derived their bases from the first Supreme Court Decision with respect to forfeiture. These precedents convicted the defendant of the facts charged about actual expense compensation, while they also determined that the possibility of forfeiture shall be ruled out because the court’s position is based on actual expense compensation. However, these judgments are not reasonable because actual expense compensation as the reason for exclusion of forfeiture cannot help constituting the reason for denying the establishment of a violation of the Attorneys-at-Law Act according to the first Supreme Court Decision. Even if the defendant's statement of reason for appeal did not include claims of actual expense compensation, it is desirable that the appellate court declares him/her not guilty by its official authority on the ground that factors relevant to actual expense compensation influenced the decision.