변호사법 제109조와 민간조정 활성화를 위한 입법과제

Abstract

Article 109 of the current Attorney-At-Law Act prohibits a person who is not an attorney-at-law from performing the work of an attorney-at-law for receiving money, valuables or other benefits. A person who has violated this provision shall be punished by imprisonment with labor for not longer than 7 years or by a fine not exceeding 50 million Korean Won. This paper reviewed Article 109 of the Attorney-At-Law Act and legislative tasks for vitalizing civil mediation in the face of the ADR era. This paper tried to comparatively review mediation-related laws of Germany and Japan which are promoting mediation of civil disputes from the viewpoint of comparative law, to seek the directions of legislating our own mediation law. The Article 109 of the Attorney-at-law Act explicitly provides only for arbitration and reconciliation among ADRs, and does not give any provision for mediation, except for mediation of family disputes. Nevertheless, mediation and international conciliation are recognized as legal affairs, and a person, not an attorney-at-law, who performs mediation or conciliation for receiving money. valuables or other benefits, is criminally punished under the Article 109 of the Attorney-At-Law Act. Accordingly, as it is contradictory to the requirements of the Article 109 of the Attorney-at-law Act in the aspect of interpretation theory, this paper also studied this matter. Meanwhile, in Korea, the court mediations under the Judicial Conciliation of Civil Disputes Act or the administrative mediations performed by various dispute conciliation committees organized under individual laws have been developed, whereas civcil mediation has not been properly activated. One of the reasons therefor is that the Article 109 of the Attorney-at-law Act is acting as a stumbling block. In order to overcome these barriers, this paper tried to seek legislative tasks for vitalizing civil mediation while referring to the legislative examples of Germany and Japan. As a legislative improvement plan for facilitating civil mediation, it is necessary to prepare a system for training and qualification of mediators as in Germany. It may be regarded as a direct invasion on lawyers, but if approached from a broader viewpoint, the design of such a mediator system can function as a new blue ocean for lawyers rather than infringement on the area or work of lawyers. In this regard, in order to secure the credibility of mediation system, this paper also studied enactment of the rules of ethics and conduct of mediators and other matters concerning the completion of education to qualify mediators. In order to reduce the number of cases in the court for activating civil mediation, this paper examined the need to introduce the pre-conciliation principle in the civil small claims of less than 30 million Korean Won which do not even need to explain the reason for judgment inspite of court trial. In addition, this paper also examined the direction of amending the Attorney-at-Law Act, which requires that lawyers be obliged to explain desirable dispute resolution methods in terms of litigation strategy, rather than providing legal services for clients focusing on litigation.