타인의 권리의 양수와 변호사법위반

Abstract

Subparagraph 1 of Article 112 of Attorney-at- law Act (“Statute”)provides that a person who has been in the business of taking assignments of claims of other persons or pretending to have taken assignments to enforce such claims through litigation, arbitration,settlement or other methods shall be punished. The Statute was enacted to prevent non-lawyers from manipulating subparagraph 1 of Article 109 of Attorney-at- law Act which prohibits non-lawyers from practicing law. Although the Statute was enacted to prohibit non-lawyers from practicing law in that the Statute is the supplementary rule of subparagraph 1 of Article 109 of Attorney-at- law Act, statutory language of the Statute has no limitation of subject. Also, elements of the Statute are vague and overbroad. Moreover, not only pretending to have taken assignments of claims of other persons but also taking assignments of rights which is generally allowed by law, could be punished. Thus, the Statute could violate clarity principle derived from legality principle, and constitutional right to practice trade or profession. Therefore, considering the legislative purpose of Attorney-at- law Act, statutory language should not be applied literally. Where assigned rights are the same to performed rights, the elements could be satisfied under the Statute. Also, because ownership, unlike contractual rights, has no specific obligor, does not require complicated legal analysis thanks to the public record system, and does not raise privacy issues, claiming ownership does not require a lawyer who has legal knowledge and professional responsibility. Therefore, considering the legislative purpose, "claims" under the Statute should be limited to contractual rights.