변호사의 상인성에 관한 소고
On nature of the lawyer's activities as merchant
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Today, prevailing view and court precedents of Korea treat the lawyer as a non-merchant, and conclude that Commercial Code of Korea is not applicable to lawyer. Such a conclusion seems not to be derived from logical inference. On the contrary it seems to be highly influenced by the prevailing views of German and Japanese Commercial law academia. However, even in Germany, there has been strong criticism towards the prevailing view that the prevailing view can be justified only by their legal tradition and there are no crucial differences between the merchant and the lawyer. In United States, the Supreme Court decided that the activities of lawyers belong to area of commerce well over 20 years ago. Considering the tendency of major countries and reality of the lawyer's activities in Korea, the lawyer should be treated as a legal merchant and Commercial Code of Korea should be applied to the lawyer. Since the lawyer also pursue the profit just as the other merchants do, and there has not been any social agreement or legal tradition that lawyer's activities do not belong to commerce or business. However in spite of author's assertion, it should not be overlooked that the lawyer's activities should also contribute to the public interest, in which respect Attorney Act of Korea regulates.
Abstract
Today, prevailing view and court precedents of Korea treat the lawyer as a non-merchant, and conclude that Commercial Code of Korea is not applicable to lawyer. Such a conclusion seems not to be derived from logical inference. On the contrary it seems to be highly influenced by the prevailing views of German and Japanese Commercial law academia. However, even in Germany, there has been strong criticism towards the prevailing view that the prevailing view can be justified only by their legal tradition and there are no crucial differences between the merchant and the lawyer. In United States, the Supreme Court decided that the activities of lawyers belong to area of commerce well over 20 years ago. Considering the tendency of major countries and reality of the lawyer's activities in Korea, the lawyer should be treated as a legal merchant and Commercial Code of Korea should be applied to the lawyer. Since the lawyer also pursue the profit just as the other merchants do, and there has not been any social agreement or legal tradition that lawyer's activities do not belong to commerce or business. However in spite of author's assertion, it should not be overlooked that the lawyer's activities should also contribute to the public interest, in which respect Attorney Act of Korea regulates.
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