[edit] Supreme Court Full Bench Decision 98Do3697 delivered on June 15, 2000 [Bribery, Violation of Attorney-at-law Act]

【Main Issues】

[1] Determining whether benefits received by a public official while performing his/her duties constitute unjust profit and, therefore, bribery.

[2] The definition of duties on the job in the crime of bribery

[3] Whether referral of a litigable case to the defendant who is an attorney-at-law, by a person who is not an attorney-at-law, such as a policeman or a public official in the court or prosecutor's office, and taking money in compensation constitutes "providing or mediating" as defined in the latter part of Paragraph 2 of Article 90 of the former Attorney-at-law Act, and whether the acceptance of a referral of a litigable case by the defendant, who is an attorney-at-law, knowing the circumstances, constitutes a violation of the item 2 of Article 90, Paragraph 2 of Article 27 and item 2 of Article 90 of the aforementioned Act

【Summary of Decision】

[1] Whether the profit received by a public official is an unjust profit when received as compensation that is related with an official's duties, must be determined by looking at all of the circumstances including the work of the public official, the relationship between the work and the assistance provider, the existence of a personal relationship between the bilateral parties, the amount of assistance, the circumstances and period of assistance, etc. Furthermore, since the legal interest that is protected by the bribery law is the impartiality of work and the building of social credibility, one of the determining factors must be whether the acceptance of the assistance by the public official puts into question the impartiality of the public work and whether it creates social mistrust.

[2] "Duty," as defined in the bribery law doesn't just include the duty by public officials as regulated in the statutes, but also the work that is closely related to the public official's official duty, as well as the customary duties and duties that are actually being carried out.

[3] [Majority Opinion] "Providing or mediating," as stated in the latter part of Paragraph 2 of Article 90 of the former Attorney-at-law Act, is defined as the act between the party to a case and the party that handles litigation such as representation of the case, including the mediation or facilitation of a delegation contract in relation to the litigable case or litigation work, and therefore, the formation of an actual agent contract isn't necessary. Additionally, it includes not just the person who demands a fee as compensation for the assistance, but also the other party as well as the person who received such fee from both parties. It also includes not only the cases where a person who is not an attorney-at-law refers a litigable case to another person who is not an attorney-at-law, but also where it is referred to an attorney-at-law and although the act of referring a litigable case to an attorney and receiving monetary compensation is separately punished under item 3 of Article 90 and Paragraph 1 of Article 27 of the same Act, it is not looked upon differently, and therefore, the act by a person who is not an attorney-at-law such as a policeman or a public official in the court or counsel's office, in referring a litigable case and taking money in compensation constitutes "providing or mediating" as defined in the latter part of the item 3 of Article 90 of the former Attorney-at-law Act. Therefore, the acceptance of a referral of a litigable case by the defendant, who is an attorney-at-law, knowing the circumstances, constitutes a violation of item 3 of Article 90, Paragraph 2 of Article 27 and item 2 of Article 90 of the same Act.

[Supplementary Opinion to the Majority Opinion] Although Paragraph 1 of Article 27 was newly added by Law No. 4544 of March 10, 1993, to the former Attorney-at-law Act (which was wholly amended by Law No. 6207 of January 28, 2000), and the same violation is punished separately under item 3 of Article 90, it does not mean that the meaning of "providing and mediating" under the latter part of item 2 of Article 90 should be interpreted differently from prior interpretations and only include the referral of a litigable case to a person who is not an attorney-at-law and only apply the provisions of Paragraph 1 of Article 27 to the referral of a litigable case to attorneys-at-law because considering the wordings of item 2 of Article 90 and Paragraph 2 of Article 27 of the former Attorney-at-law Act, its enacted purpose, and the background to the new enactment of item 1 of Article 27 of the same Act, "providing or mediating" as stated in the latter part of item 2 of Article 90 of the Attorney-at-law Act should be defined as the act between the party to a case and the party that handles litigation matters such as referral of a case, including the mediation or facilitation of an agent contract in relation to a litigable case or litigation work and there is no difficulty whatsoever in interpreting the Article to include not only the cases where a person who is not an attorney-at-law refers a litigable case to another person who is not an attorney-at-law, but also where it is referred to an attorney-at-law, and since the meaning and content is not unclear, such interpretation does not violate the principle of "no punishment without a law authorizing it(nulla poena sine lege)." Consequently, item 3 of Article 90 and Paragraph 1 of Article 27 of the Attorney-at-law Act are concurrently applied in punishing cases where a person who is not an attorney-at-law refers to a litigable case and receives monetary compensation, and therefore, both Articles coexist in punishing the same act although the two legal provisions cannot be thought to be in a special relationship or crimes of conceptual concurrence, and therefore, such coexistence stems from the inconsideration that led to the inappropriate legislation of Paragraph 1 of Article 27 where part of the applicatory scope overlaps with the scope of the latter part of item 2 of Article 90.

[Dissenting Opinion] It is hard to accept that attorneys are included in the scope of the people punished for "providing or mediating" in the item 2 of Article 90 of the former Attorney-at-law Act (revised by Law No. 6207 on January 28, 2000). When looking at the wordings of the Act or its arrangement and format, there exist provisions prohibiting a referral of a legal case which should be dealt with only by attorneys as stipulated in Paragraph 1 of Article 27 and the latter part of item 2 of Article 90 of the same Act. The former seemingly prohibits the referral to qualified attorneys-at-law, and the latter, the referral to persons who are not attorneys-at-law, but if the interpretation of "providing or mediating" of the latter part of item 2 of Article 90 is construed to include the "referral to attorneys-at-law," then in the case of referral to lawyers, it will be a violation of both item 2 of Article 90 and Paragraph 1 of Article 27 and, therefore, two provisions are applicable in punishing the act and in such a case it is difficult to determine the relationship between the two provisions (whether they are in a special relationship, whether they are crimes of conceptual concurrence, or just overlapping) and not one of the opinions about their relationship provides a clear explanatory reason for defining the relationship, and such being the case, there is also an opinion that it was a legislative mistake or it was an inappropriate legislation but it is uncertain whether such enactment can be treated as a mistake. Secondly, regardless of the purpose of the enactment, since there was a full amendment to the Attorney-at-law Act and Paragraph 1 of Article 27 was newly enacted, it is proper to newly interpret the relationship between the provisions, which also conforms with the principles of proper legal construction, and when considering the principle of legality and strict construction, it is proper to interpret item 2 of Article 90 as not including "attorneys-at-law" as the receiver of referral. Thirdly, although it is said that such interpretation goes against the legislative purpose of prohibiting the direct/indirect violation of the Attorney-at-law Act by the attorneys-at-law, necessity, of itself, cannot justify such a strained interpretation of the law in order to punish such acts.

[Supplementary Opinion to the Dissenting Opinion] In item 2 of Article 90 of the former Attorney-at-law Act(revised by Law No. 6207 of January 28, 2000), a lawyer receiving a referral to a case from "a person providing or mediating" means that the attorney-at-law received assistance from a person who already engaged in providing or mediating prior to the violation in question, and "such providing or mediating" means, not "such case or work" but the act as stated in the former part of item 2 of Article 90 of the same Act, which is an "act by a person who is not an attorney-at-law of handling law related work and receiving compensation" and therefore "receiving referrals and mediation by a person who provides and mediates in such acts" means "receiving a referral in representing a case from a person who assisted in brokering law-related work, etc, to a person who is not an attorney-at-law and received payment. Furthermore, according to Paragraph 2 of Article 27, only providing and mediating in such act when knowing the "circumstances" is included in providing and mediating that is regulated and therefore the provision is only applicable when the lawyer who received and accepted such delegation knew that the person personally handled legal services as stated in the former part of item 2 of Article 90 or assisted non-lawyers as stated in the latter part of the same provision, and therefore, since there is no evidence to back up the assertion that the broker was a person who handled such work or acted as a middleman for such work or that the defendant knew about such circumstances, the judgment of the court below is justified.

【Reference Provisions】[1] Article 129 of the Criminal Act / [2] Article 129 of the Criminal Act / [3] Article 27 (Article 37 of the current Act) and item 2 of Article 90 (See item 1 of Article 109 of the current Act) of the former Attorney-at-law Act (wholly amended by Law No. 6207 of January 28, 2000)

Article 129 of the Criminal Act (Acceptance of Bribe and Advance Acceptance) (1) A public official or an arbitrator who receives, demands or promises to accept a bribe in connection with his duties, shall be punished by imprisonment for not more than five years or suspension of qualifications for not more than ten years.

(2) If a person who is to become a public official or an arbitrator receives, demands or promises to accept a bribe in response to a solicitation, in connection with the duty which he is to perform and he actually becomes a public official or arbitrator, imprisonment for not more than three years or suspension of qualifications for not more than seven years shall be imposed.

Article 27 of the former Attorney-at-law Act (revised by Law No. 6207 of January 28, 2000) (Prohibition, etc. of Entering into Partnership with Non-Attorney) (1) No person shall receive or demand money or valuables, entertainment or other benefits afterwards in return for introducing, referring or leading a party to a case or another interested person in the case to a certain attorney-at-law in connection with representation for a legal case or performance of a legal service.

(2) An attorney-at-law shall not receive referrals of clients for legal cases or legal services from the persons referred to in Items 1 and 2 of Article 90 or Item 1 of Article 91 or allow such persons to use his name.

(3) A person who is not an attorney-at-law shall not establish and operate a law office by employing an attorney-at-law.

(4) Fees and other profits earned through services that may be provided only by attorneys-at-law shall not be shared with a person who is not an attorney-at-law.

Article 90 of the former Attorney-at-law Act (revised by Law No. 6207 of January 28, 2000) (Penal Provisions) Any person falling under any of the following Items shall be punished by imprisonment with prison labor for not more than 5 years or by a fine not exceeding 10 million or may be punished by both:

1. <omitted>

2. A person, not an attorney-at-law, who receives or promises to receive money, articles, banquet or other benefits or who gives or promises to give those things to a third party, in compensation for providing or mediating legal services, such as, examination, representation, arbitration, settlement, solicitation, legal consultation, making of legal documents, etc. concerning a litigious case, a non-contentious case, arbitration of household matters, an adjudicative case, an administrative adjudication, a request for review, raising of an objection, a case which an objection is raised against an administrative agency, a case under investigation by an investigation agency established according to Acts and subordinate statutes, and other general legal affairs

3. <omitted>

【Reference Cases】 [1][2] Supreme Court Decision 95Do1269 delivered on September 5, 1995 (Gong1995Ha, 3458), Supreme Court Decision 94Do3022 delivered on January 23, 1996 (Gong1996Sang, 703), Supreme Court Full Bench Decision 96Do3377 delivered on April 17, 1997 (Gong1997Sang, 1354), Supreme Court Decision 96Do3378 delivered on April 17, 1997 (Gong1997Sang, 1368), Supreme Court Decision 97Do2609 delivered on December 26, 1997 (Gong1998Sang, 475) / [1] Supreme Court Decision 97Do3113 delivered on March 10, 1998 (Gong 1998Sang, 1102) / [2] Supreme Court Decision 84Do1568 delivered on September 25, 1984 (Gong1984, 1760), Supreme Court Decision 91Do3364 delivered on February 28, 1992 (Gong1992, 1218), Supreme Court Decision 93Do2962 delivered on March 22, 1994 (Gong1994Sang, 1372), Supreme Court Decision 96Do582 delivered on February 27, 1998 (Gong1998Sang, 949), Supreme Court Decision 99Do2530 delivered on November 9, 1999 (Gong1999Ha, 2545) Supreme Court Decision 99Do4022 delivered on January 28, 2000 (Gong2000Sang, 639) / [3] Supreme Court Decision 81Do 2597 delivered on April 27, 1982 (Gong1982, 543), Supreme Court Decision 86Do1720 delivered on December 23, 1986 (Gong1987, 272), Supreme Court Decision 99Do2491 delivered on September 7, 1999 (Gong1999Ha, 2148), Supreme Court Decision 99Do5183 delivered on April 11, 2000 (Gong2000Sang, 1222)

【Defendant】 Defendant

【Appellant】 Defendant and Prosecutor

【Defense Counsel】 Law Office Doorae, Attorneys Roh Sung-haeng and 1 other

【Court of First Instance】 Uijeongbu Branch Court of Seoul District Court Judgment 98Gohap44 delivered on June 15, 1998

【Court of Second Instance】 Seoul High Court Decision 98No1690 delivered on October 13, 1998

【Disposition】 The judgment of the court below shall be reversed and the case shall be remanded to Seoul High Court.

【Reasoning】 The grounds for appeal are examined as follows.

1. Regarding the defendant's ground for appeal (the supplementary documents stating the ground for appeal is used as a supplement to the ground for appeal)

Whether the profit received by a public official is an unjust profit when received as compensation that is related with an official's duties, must be determined by looking at all of the circumstances including the work of the public official, the relationship between the work and the assistance provider, the existence of a personal relationship between the bilateral parties, the amount of assistance, the circumstances and period of assistance, etc. Furthermore, since the legal interest that is protected by the bribery law is the impartiality of work and the building of social credibility, one of the determining factors must be whether the acceptance of the assistance by the public official puts into question the impartiality of the public work and whether it creates social mistrust. (See Supreme Court Decision 97Do3113 delivered on March 10, 1998.) "Duty," as defined in the bribery law, doesn't just include the duty by public officials as regulated in the statutes, but also the work that is closely related to the public official's official duty, as well as the customary duties and duties that are actually being carried out. (See Supreme Court Decision 96Do3378 delivered on April 17, 1997, Supreme Court Decision 96Do582 delivered on February 27, 1998, etc.)

According to the decision of the court below and the decision of the court of first instance that the court below concurred with, the defendant requested the referral of a litigable case to the policemen of the Namyangju Police Station, on the case that is currently under investigation through the case administrator Choi Jong-up. The policemen who received the request introduced them to the defendant and induced them into appointing the defendant as their lawyer. Additionally, the policemen provided assistance such as disclosing the content of the case to Choi Jong-up and the defendant paid the policemen 30% of attorney fees in compensation for providing and mediating the litigable case and assistance. Since the factual relationship is as stated above, the act of providing assistance, providing and mediating litigable cases that they were investigating according to the request by the defendant, is closely related to the duties of investigators, and therefore, the act of providing and mediating litigable cases, as well as providing assistance in return for compensation, constitutes bribery.

Therefore, the decision by the court below was justified and it cannot be said that there was an improper interpretation of the legal principles concerning bribery or a mistake in the factual matters.

2. Regarding the ground for appeal by the prosecutor

The court below concurred with and maintained the judgment of the court of first instance for the following reasons. ① The defendant colluded with Choi Jong-up, the administrator in charge of the case, and received referrals to a litigable case by the policemen of Namyangju Police Station, paying them each 30% of the attorney assigning fee, receiving referrals 62 times between April, 1997 and October 13, 1997 paying a total of 88,140,000 won as commission fees, and ② the defendant colluded with Choi Eung-ju, the administrator in charge to receive referrals to litigable cases and cases under investigation, through the introduction by officials in the court and the district Prosecutor's office and the judicial scriveners, etc., and pay them each 20% of attorney fees in compensation, receiving such introductions 48 times between November 11, 1995 and October 1997, paying a total of 50,700,000 won as commissions. Regarding the facts charged that there was a violation of the items 3 and 2 of Article 90 and Paragraph 2 of Article 27 of the Attorney-at-law Act, since the act of referring litigable cases to an attorney-at-law and receiving compensation is separately punished under item 3 of Article 90 and Paragraph 1 of Article 27 of the Attorney-at-law Act, the court of the first instance held that the meaning of "a person who provided and mediated such acts" as referred to in item 2 of Article 90 of the former Attorney-at-law Act(revised by Law No. 6207 on January 28, 2000) should be interpreted as being a person who refers a litigable case to non-attorneys who handle litigation matters such as representing parties at the litigation and such interpretation should not be expanded. Such interpretation is also in compliance with the provision that prohibits the handling of legal services by a person who is not an attorney-at-law, and therefore, the act by an attorney-at-law of receiving referrals to cases from a person who is not an attorney-at-law and providing monetary compensation in return is not a violation of Paragraph 2 of Article 27 and item 2 of Article 90 of the Attorney-at-law Act and does not constitute a criminal act under the aforementioned provisions.

Generally a lawyer's duty is to carry out legal works with the purpose of protecting basic human rights and social justice and, therefore, there are strict qualifications for becoming an attorney-at-law and various measures that enforce the adherence of regulations that promote integrity and propriety in carrying out his/her duty, and if the person who doesn't qualify as an attorney-at-law and doesn't adhere to the provisions is left alone, at the outset, to intervene in other people's legal cases in order to gain monetary compensation or other profit, then it is likely that the person will harm the interest of the party or other interested parties, as well as interfer with the just and smooth operation of the legal system. Furthermore the action may destroy the legal order, and therefore, the purpose for retaining item 2 of Article 90 of the Attorney-at-law Act which prohibits the handling of legal services by a person who is not an attorney-at-law is to dispel such possibilities. Furthermore, under Paragraph 2 of Article 27 of the Attorney-at-law Act, it is stated that "No lawyer shall, with the knowledge of the fact, receive a referral of a legal case or legal affairs from a person prescribed in items 1 and 2 of Article 90 or item 1 of Article 91, or allow him to use his title," prohibiting the coalition or collusion between an attorney and a person who is not an attorney-at-law who handles legal matters in order to prevent the handling of legal matters by a person who is not an attorney-at-law (reference is made to Supreme Court Decision 96Do2340 delivered on August 21, 1998).

Considering the purpose of the legislation of item 2 of Article 90 of the Attorney-at-law Act and the fact that the provision sees the representation of a litigious case as a form of handling legal matters, "providing and mediating" should be defined as the act between the party of a litigable case and the party that handles litigation matters such as representing parties at the litigation, including the mediation or facilitation of an agent contract in relation to the litigation or litigating work, and therefore, the formation of an actual delegation contract isn't necessary, and it includes not just the person who demands a fee as compensation for the assistance, but also the other party as well as the person who received such fee from both parties. It also includes not only the cases where a person who is not an attorney-at-law refers a litigable case to another person who is not an attorney-at-law, but also where it is referred to an attorney-at-law (See Supreme Court Decision 81Do2597 delivered on April 27, 1982, Supreme Court Decision 86Do1720 delivered on December 23, 1986, Supreme Court Decision 99Do2491 delivered on September 7, 1999, etc.), and therefore, although the act of referring a case to an attorney and receiving monetary compensation is separately punished under the same Act, under item 3 of Article 90 and Paragraph 1 of Article 27, it should not looked upon differently.

Therefore, the act by a person who is not an attorney-at-law such as a policeman, or a public official in the court or counsel's office, in referring a litigable case and taking money in compensation constitutes "providing or mediating" as defined in the latter part of item 2 of Article 90 of the former Attorney-at-law Act and therefore, the acceptance of a referral of a litigable case by the defendant, who is an attorney-at-law, knowing the circumstances, constitutes a violation of item 3 of Article 90, Paragraph 2 of Article 27 and item 2 of Article 90 of the aforementioned Act.

Despite the aforementioned interpretation, the court below decided, as stated in their opinion, that the facts charged do not constitute a violation of the Attorney-at-law Act. However, this is a misinterpretation of the legal principles of Paragraph 2 of Article 27 and item 2 of Article 90 of the Attorney-at-law Act and therefore, the ground for appeal on this point can be accepted.

3. Conclusion

Therefore, the appeal by the prosecutor, pointing out the part where the court below made in its judgment on the violation of the Attorney-at-law Act, was justified, while there is no valid ground for appeal by the defendant on the taking of bribes. However, since the violation of the Attorney-at-law Act and the bribery charge are indivisible under the former part of Article 37 or Article 40 of the Criminal Act, the judgment of the court below must be reversed in entirety, and as mentioned in the disposition, shall be remanded to the court below for retrial and determination. Aside from the dissenting opinion concerning Paragraph 2 made by Justices Lee Don-hui, Cho Moo-jeh and Yoon Jae-sik and the supplementary opinion to the dissenting opinion made by Justice Cho Moo-jeh, the decision is delivered with the assent of all justices who reviewed the appeal, and there is a supplementary opinion to the majority opinion by Justice Song Jin-hun.

4. The supplementary opinion to the majority opinion made by Justice Song Jin-hun is as follows:

Before the enactment of Paragraph 1 of Article 27 pursuant to the amendment to the Attorney-at-law Act by Law No. 4544 of March 10, 1993, item 2 of Article 90, together with Paragraph 2 of Article 27, of the Attorney-at-law Act, functioned as regulating the handling of legal matters by persons who are not attorneys-at-law as well as the providing and mediating of legal services to attorneys-at-law and to person who are not attorneys-at-law and receiving compensation in return, as well as prohibiting the coalition or collusion between attorneys and persons who are not attorneys-at-law who handle legal matters in order to prevent the handling of legal matters by persons who are not attorneys-at-law, and there is no different view on this matter.

However, through the amendment to the Attorney-at-law Act on March 10, 1993, item 2 of Article 90 that prohibited the handling of legal matters by a person who is not an attorney-at-law was expanded to include "a person, not an attorney-at-law, who receives or promises to receive money, articles, banquet or other benefits or who gives or promises to give those things to a third party, in compensation for providing or mediating legal services, such as, examination, representation, arbitration, settlement, solicitation, legal consultation, making of legal documents, etc. concerning a litigious case, a non-contentious case, arbitration of household matters, an adjudicative case, an administrative adjudication, a request for review, raising of an objection, a case which an objection is raised against an administrative agency, a case under investigation by an investigation agency established according to Acts and subordinate statutes, and other general legal affairs." Thus, the revised Act included a broader range of legal matters that are prohibited. Furthermore, Paragraph 1 of Article 27 that states that "no person shall introduce, mediate or induce a party and other interested parties to a specified lawyer in connection with a referral of a legal case or affairs, and receive or demand any money and articles, banquet or other benefits in compensation for it," was newly enacted, specifically and broadly prohibiting the providing and mediating of litigious cases to an attorney-at-law, punishing any violations under both Paragraph 2 of Article 27 and item 3 of Article 90 and therefore, the legislative purpose of Paragraph 1 of Article 27 was to eradicate the wrongful acts carried out in the legal field and to newly legislate a penal provision to acts of providing and mediating litigious cases to attorneys-at-law and receiving monetary compensation, etc., in return. (See the Official gazette No. 12360 of March 10, 1993, minutes from the 160th General Meeting of the National Assembly, Report by the Legislation & Judiciary Committee.)

Therefore, although Paragraph 1 of Article 27 was newly legislated in order to broadly prohibit the providing and mediating of litigious cases to attorneys-at-law, in order to eradicate the wrongful acts carried out in the legal field, if one compares the scope with the latter part of item 2 of Article 90, attorneys-at-law are included as potential violators, and the act of introducing and inducing is newly included as part of the prohibited acts, and although the promise of compensation is excluded as part of the compensatory scope, the request for compensation is included, and therefore if one limits the focus of providing and mediating litigious cases to attorneys-at-law, overall the applicable scope has been expanded, but Paragraph 2 of Article 27 does not include in its scope a person who is punished under Paragraph 1 who received mediation for litigious cases. Therefore, in the case where a person who is not an attorney-at-law who received monetary compensation for providing and mediating litigious cases to attorneys-at-law, it is disputed which provision to apply since the act can be regulated by overlapping provisions. Furthermore, with respect to the wording of item 2 of Article 90, it is questionable whether an attorney-at-law who gives monetary compensation and receives referrals to litigious cases can be punished under item 2 of Article 90.

However, although Paragraph 1 of Article 27 was newly enacted and the same violation is punished separately under item 3 of Article 90, it does not mean that the meaning of "providing and mediating" under the latter part of item 2 of Article 90 should be interpreted differently from prior interpretations and only include the referral of litigable cases to a person who is not an attorney-at-law and only apply the provision of Paragraph 1 of Article 27 to the referral of a case to attorneys-at-law. Alongside with the reason given by the majority, these are several additional points that should be mentioned as supplementary reasons.

First of all, considering the applicable scope of the two provisions on the issue of the act itself, there are acts that are applicable to the latter part of item 2 of Article 90 and not to Paragraph 1 of Article 27 (Providing and mediating when there is only a promise for monetary compensation) and acts that are applicable to Paragraph 1 of Article 27 but not to item 2 of Article 90 (Request for monetary compensation after the act of providing and mediating). Considering the applicable person, Paragraph 1 of Article 27 doesn't have any limitations, but item 2 of Article 90 is only limited to persons who are not attorneys-at-law, and therefore, Article 90 could be viewed as a special provision, thus making it difficult to discern which one is the special provision and must be given priority in its application.

The latter part of item 2 of Article 90 is a provision that punishes a person who is not an attorney-at-law who provides and mediates litigable cases, and from the wordings of Paragraph 2 of Article 27, it is clear that it is prohibiting the act by an attorney-at-law, of receiving referrals of litigious cases from a person who is regulated under item 2 of Article 90, and since the person who refers litigable cases, who is not an attorney-at-law, as regulated in the latter part of item 2 of Article 90, and the attorney-at-law, as regulated in Paragraph 2 of Article 27, who receives such referrals are in a relationship as provider and receiver, if the scope of the latter part of item 2 of Article 90 is limited to the person who provides and mediates to persons who are not attorneys-at-law and excludes the referrals to attorneys-at-law, then logically it is impossible for a lawyer to receive referrals from the person as regulated under item 2 of Article 90, who provides and mediates to persons who are not attorneys-at-law, and therefore, it is impossible to interpret the latter part of item 2 of Article 90 and Paragraph 2 of Article 27 in a consistent manner.

Furthermore, if one limits the scope of the latter part of item 2 of Article 90 to only include providing and mediating of litigious cases to persons who are not attorneys-at-law, then consequently with the expansion of the applicable scope of item 2 of Article 90 in order to eradicate the wrongful acts in the legal filed, and the new enactment of Paragraph 1 of Article 27 in order to broadly prohibit the referrals of litigious cases to lawyers, unlike in the past it makes it impossible to punish wrongful attorneys {This word is used in Article 4 of the former Legal Service Regulatory Act (Enacted by Law No. 751 of October 7, 1961 and repealed by the amendment to the Attorney-at-law Act, Law No. 2542 of January 25, 1973)}. Such a consequence is not logical and it also goes against the legislative purpose for amending the Attorney-at-law Act, since the Attorney-at-law Act strives to bring about the independence of the legal profession so that it may defend human rights and achieve social justice, maintaining social justice and improving the legal system (See Articles 1 and 2 of the Attorney-at-law Act), and such interpretation is incomprehensible because it destroys the core of the Attorney-at-law system.

As mentioned above, considering the wordings of the item 2 of Article 90 and Paragraph 2 of Article 27 of the former Attorney-at-law Act, its legislative purpose, and the background to the new enactment of Paragraph 1 of Article 27 of the same Act, "providing or mediating" as stated in the latter part of item 2 of Article 90 of the Attorney-at-law Act should be defined as the act between the party of a litigable case and the party that handles litigation matters such as referral to a litigable case, including the mediation or facilitation of an agent contract in relation to the litigable case or litigation work and there is no difficulty whatsoever in interpreting the Article to include not only the cases where a person who is not an attorney-at-law refers a litigable case to another person who is not an attorney-at-law, but also where it is referred to an attorney-at-law, and since the meaning and content is not unclear, such interpretation does not violate the principle of "no punishment without a law authorizing it (nulla poena sine lege)."

Consequently, item 2 of Article 90 and Paragraph 1 of Article 27 of the Attorney-at-law Act are concurrently applied in punishing cases where a person who is not an attorney-at-law refers litigable cases and receives monetary compensation, and therefore, both Articles coexist in punishing the same act although the two legal provisions cannot be thought to be in a special relationship or crimes of conceptual concurrence, and therefore, non-consideration of such coexistence led to the inappropriate legislation of Paragraph 1 of Article 27 where part of the applicatory scope overlaps with the scope of the latter part of item 2 of Article 90 (this part has been corrected with the amendment of the Attorney-at-law Act of January 28, 2000).

5. The dissenting opinion by Justices Lee Don-hui, Cho Moo-jeh, and Yoon Jae-sik on the matter of Attorney-at-law violation is as follows:

The meaning of "a person who provided and mediated such acts" as stated in the latter part of item 2 of Article 90 of the former Attorney-at-law Act (revised by Law No. 6207 of January 28, 2000), looking at its contextual meaning without looking at the relationship between it and Paragraph 1 of Article 27 and item 3 of Article 90 of the Attorney-at-law Act, is as the majority opinion has stated, including in its scope not just the providing and mediating of litigable cases to a person who is not an attorney-at-law by a person who is not an attorney-at-law, but also the referrals to attorneys-at-law, and earlier Supreme Court cases also seem to have interpreted the provision in such a way up until the amendment to the Attorney-at-law Act by Law No. 4544 of March 10, 1993, where Paragraph 1 of Article 27 was newly enacted.

However, with the amendment of the Attorney-at-law Act by Law No. 4544 of March 10, 1993, Paragraph 1 of Article 27 was newly enacted and since a separate penal provision exists under item 3 of Article 90 that punishes violations under Articles 26 and 27, it is difficult to concur with the prior interpretation that includes in the scope of the latter part of item 2 of Article 90, attorney-at-law as the receiver of referrals for the following reasons.

Firstly, when looking at the wordings of the Act or its arrangement and format, there exist provisions prohibiting a referral of a legal case which should be dealt with only by attorneys as stipulated in Paragraph 1 of Article 27 and the latter part of item 2 of Article 90 of the same Act. The former seemingly prohibit the referral to qualified attorneys-at-law, and the latter, the referral to persons who are not attorneys-at-law, but if the interpretation of "providing or mediating" of the latter part of item 2 of Article 90 is construed to include the "referral to attorneys-at-law," then in the case of referral to lawyers, it will be a violation of both item 2 of Article 90 and Paragraph 1 of Article 27 and, therefore, two provisions are applicable in punishing the act and in such a case it is difficult to determine the relationship between the two provisions (whether they are in a special relationship, whether they are crimes of conceptual concurrence, or just overlapping). Additionally, not one of the opinions about their relationship provides a clear explanatory reason for defining the relationship, and such being the case, there is also an opinion that it was a mistake in legislation or it was an inappropriate legislation but it is uncertain whether such enactment can be treated as a mistake. The reason for this interpretation is that the Supreme Court has always included attorneys-at-law who were receivers of referrals as being regulated by item 2 of Article 90 and there was no other theory that stated otherwise. Thus, it is hard to believe that they have overlooked this and have provided overlapping penal provisions.

Secondly, regardless of the purpose of the enactment, there was a full text amendment to the Attorney-at-law Act and new provisions such as Paragraph 1 of Article 27 was newly enacted and therefore, there need to be a new interpretation on the relationship between the different provisions.

It is correct to interpret legal provisions so that both provisions become meaningful, and therefore, rather than interpreting the two provisions as being concurrent and stating that it is hard to discern the relationship between the two provisions, it is better to interpret the receiver of referrals stated in the latter part of item 2 of Article 90 as only including persons who are not attorneys-at-law and Paragraph 1 of Article 27 as applying to attorneys-at-law.

Also, according to the principle of nulla poena sine lege as well as the principle of strict interpretation in criminal law, it is right not to include attorneys-at-law as the receiver of "providing and mediating" under item 2 of Article 90.

Regardless of the interpretation prior to the amendment, after the amendment to the Attorneys-at-law Act, attorneys-at-law are not included as the receivers of the referrals in the latter part of item 2 of Article 90, and therefore, a possible interpretation is that for attorneys-at-law, only Paragraph 1 of Article 27 is applicable, and since the basic principle in criminal law is that when in doubt, one must rule in favor of the defendant, it is right to only apply Paragraph 1 of Article 27, which is unquestionably applicable to cases where the receiver of referrals is an attorney-at-law. Ruling that both item 2 of Article 90 and Paragraph 2 of Article 27 are applicable, despite the fact that the provisions are questionable, goes against the principle of nulla poena sine lege and principle of strict interpretation.

After the amendment to the Attorney-at-law Act, there were similar cases decided by the lower courts and the fact that the cases were decided differently depending on the interpretation of the applicable law proves that both interpretations of the regulation are possible.

(However, according to this interpretation, the phrase in Paragraph 2 of Article 27 "No lawyer shall, with the knowledge of the fact, receive a referral of legal cases or affairs from a person prescribed in items 2 of Article 90" will become meaningless. However, compared to the interpretation that allows for an overlapping penal provision, we find this interpretation more reasonable.)

Thirdly, although it is said that such interpretation goes against the legislative purpose of prohibiting the direct/indirect violation of the Attorney-at-law Act by the attorneys-at-law, necessity, of itself, cannot justify such a strained interpretation of the law in order to punish such acts. Moreover, this problem has already been resolved with the full amendment to the Attorney-at-law Act by Law No. 6207 of January 28, 2001 with the provisions, Articles 109 and 34, and such legislation reveals the problems that such interpretation had prior to the amendment to the Attorney-at-law Act.

Therefore, even though there are some failings in the interpretation, the decision of the court below should be affirmed.

6. The supplementary opinion to the dissenting opinion by Justice Cho Moo-jeh is as follows:

A. The legal principles of criminal law should be interpreted strictly according to the spirit of the principle of nulla poena sine lege.

According to the majority opinion, under the Attorney-at-law Act (in the following opinion, the name of the Act will be omitted) Paragraph 2 of Article 27, an attorney-at-law can be punished if he/she received referrals from a person who is not an attorney-at-law of litigious cases or litigation related work, and it is doubtful whether such interpretation is allowable according to the statutory interpretation of the text.

B. Paragraph 2 of Article 27 punishes the act of receiving referrals of litigious matters from 'a person who is regulated under item 1 or 2 of Article 90 or item 1 of Article 91.'

In order to help our understanding, if we first analyze the act of receiving referrals from a person regulated under item 1 of Article 90 and item 1 of Article 91, the person who is regulated, who provides and mediates for attorneys-at-law, is 'a person who receives compensation for providing solicitation in matters handled by public officials' (item 1 of Article 90) and 'a person who exercises a right that he obtains through acquisition by transfer, etc.' (item 1 of Article 91) and therefore, without asking whether the person is a lawyer, it must be a person who has already carried out such acts, and the phrase "receiving mediation from a person who is regulated under the provision" means receiving referrals of litigious cases from such a person who is regulated under the provision.

If you only extract the part in Paragraph 2 of Article 27 that is related to this case, the purpose of the regulation is, without a doubt, to punish an 'attorney-at-law who received mediation to a litigious case,' 'knowingly' from a 'person regulated under item 2 of Article 90.'

The provision does not state 'a person who is not an attorney-at-law' but' (along with item 1 of Article 90 and item 1 of Article 91) a person regulated under item 2 of Article 90, and therefore it is important to define the scope of 'the person' regulated by item 2 of Article 90.

The text of item 2 is as follows: A person, ① not an attorney-at-law, ② who receives or promises to receive money, articles, banquet or other benefits or who gives or promises to give those things to a third party, in compensation for ③ providing or mediating legal services, such as, examination, representation, arbitration, settlement, solicitation, legal consultation, making of legal documents, etc. concerning a litigious case, a non-contentious case, arbitration of household matters, an adjudicative case, an administrative adjudication, a request for review, raising of an objection, a case which an objection is raised against an administrative agency, a case under investigation by an investigation agency established according to Acts and subordinate statutes, and other general legal affairs ④ or mediating such legal services.

For our convenience, portion ① will be defined as the non-attorney-at-law provision, portion ② as the compensation clause, portion ③ as the handling of legal services provision and portion ④ as the 'providing and mediating' clause. Under this classification, the act that is regulated under this provision is divided into the handling of legal matters regulated under portion ③, as stated in the former part of the text, and the act of providing and mediating under portion ④, as regulated in the latter part of the text, and such act is connected with portion ①, the non-attorney-at-law provision, and portion ②, the compensation clause and all of them together form the requirements in order to punish under this law. The former part can be summarized as being the person, who is not an attorney-at-law, who personally handled litigation matters and received compensation in return (① + ② + ③), and the latter part can be summarized as a person who provided and mediated litigation matters to a person who is not an attorney-at-law and received compensation in return (① + ② + ④).

Therefore, Paragraph 2 of Article 27 regulates those acts where an attorney-at-law knowingly receives referrals from a person who is not an attorney-at-law and who handles litigation matters and receives compensation in return, or from a person who is not an attorney-at-law who provides and mediates litigation matters to a person who is not an attorney-at-law and receives compensation.

One should not overlook that both in the former and latter part of the provision, the phrases used to describe the subject was "person concerning litigious matters," "a person provides and mediates" instead of using phrases such "a person who attempts to or has committed." Therefore, in order to qualify as a person who is regulated under the provision (prior to providing and mediating the litigious case to an attorney-at-law) the subject must be a person who is not an attorney-at-law who handled matters concerning litigious cases, or must have provided or mediated to another person who is not an attorney-at-law.

Therefore, the person who is regulated under the former and the latter part of item 2 of Article 90, must be a person who has handled legal matters, at least more than one time, or must have a past history of providing and mediating.

For example, if a person who is not an attorney-at-law personally handles litigation matters in order to receive compensation, or if a person who is not an attorney-at-law provides and mediates to such a person, but fails to achieve the expected result and only after the person who paid the compensation but is unsatisfied because of the failure to achieve the result and tries to bring legal action, then the person who personally handled the legal matter or provided and mediated matters concerning litigious matters tries to refer the case to an attorney-at-law in order to get out of the predicament. In such cases as well as in similar cases, the person who provides and mediates to an attorney-at-law must be a person who carried out the acts as stated in the former and the latter part of item 2 of Article 90 prior to this incident.

C. Summarizing the main points that were discussed about this case, a lawyer receiving a referral to a litigable case from "a person providing or mediating" means that the attorney-at-law received assistance from a person who already engaged in providing or mediating prior to the violation in question, and "such providing or mediating" means, not "such case or work" but the act as stated in the former part of item 2 of Article 90, which is an "act by a person who is not an attorney-at-law of handling law related work and receiving compensation" and therefore, "receiving referrals and mediation by a person who provides and mediates in such acts" means "receiving referral in representing a litigation case from a person who assisted in brokering law-related work, etc., to a person who is not an attorney-at-law and received payment.

If this interpretation is not followed, and instead the interpretation of the majority opinion is followed, then the relevant parts of Paragraph 2 of Article 27 will be no different from regulating the act by stating that "No lawyer shall, with the knowledge of the fact, receive a referral of a legal case or affairs from a person who is not an attorney-at-law," and therefore, this conclusion will go against the condition that the person must "receive referrals from a person who carried out acts of referrals." Such conclusion is also clearly wrong when comparing this interpretation with the interpretation of Paragraph 2 of Article 27 that stipulates 'receive a referral of legal case or affairs from a person prescribed in item 1 of Article 90 or item 1 of Article 91' which is textually interpreted to mean that, without asking whether the person is a lawyer, it is the receiving of referrals from a person who receives compensation for providing solicitation in matters handled by public officials or a person who makes a living of exercising rights that he obtains through acquisition by transfer, etc. Therefore, it is doubtful whether it is a proper interpretation to say that item 2 of Article 90, which starts with 'a person, not an attorney-at-law' and is phrased in long sentences, divided into two parts describing two types of actors, as a whole, only regulates 'a person, not an attorney-at-law.'

Furthermore, according to article to Paragraph 2 of Article 27, only providing and mediating in such act when knowing the "circumstances" is included in providing and mediating that is regulated and therefore the provision is only applicable when the lawyer who received and accepted such delegation knew that the person personally handled legal services as stated in the former part of item 2 of Article 90 or assisted non-lawyers as stated in the latter part of the same provision.

D. However, in the present case there is no argument or evidence that the providers and mediators including Choi Jong-up, etc., are the persons who provided and mediated in matters concerning litigious cases or handled such matters and the defendant knew about it.

Consequently, we affirm the decision of the court below and hold groundless the ground for appeal by the prosecutor.

Chief Justice Choi Jong-young (Presiding Justice)

Justices Lee Don-hui

Kim Hyoung-sun

Chi Chang-kwon

Shin Seong-taek

Lee Yong-hun

Lee Im-soo

Song Jin-hun (Justice in charge)

Suh Sung

Cho Moo-jeh

Yoo Ji-dam

Yoon Jae-sik

Lee Yong-woo

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