퇴직공직자에 대한 변호사법의 규율방법의 문제점과 개선방안

Abstract

Article 89-6 of Attorney-at-Law Act which requires submission of a list of names of retired public officials currently working for law firms and law offices and a statement of business of the retired public officials is constitutional for the following reasons; Its purpose, which is to protect credibility of public service, is justifiable, the means to achieve the purpose is adequate, limitation it casts on the freedom of occupation is minimal, and the public interest it seeks to achieve is much greater than the private interests that are limited by it. In order to clarify whether a retired public official falls under the scope of Article 89-6 of the Attorney-at-Law Act, it is necessary to amend Decree of the Attorney-at-Law Act to add date of retirement as an element to decide whether the person is actually a retired public official. In cases where names and statements of business of retired public officials are not submitted, there is no legal grounds for Legal Ethics & Professional Conduct Council to force submission. However, attempts to incorporate retired public officials into the concept of law office staff or to group these two concepts together for the purpose of regulating under the Attorney-at-Law Act the activities of retired public officials is improper from a structural standpoint of view for the following reasons; Roles of a office staff and a retired public official are totally different, and the purpose of Article 89-6 of Attorney-at-Law Act is to prevent retired public officials from acting as lobbyists, whereas the purpose of the article relating to the reporting duty of office staffs is to prevent them from acting as brokers. Enacting Lobbyist Act to regulate retired public officials activities would be a better way from a structural standpoint. It would have been better if the Act treated law firms and law offices equally with regards to violation of Paragraph 1 of Article 89-6 of Attorney-at-Law Act. Also, Paragraph 5 of Article 89-6 is somehow not stated in Paragraph 1 of Article 97-4. To correct these errors of the Act, it is advisable to amend the Act to state Paragraph 5 of Article 89-6 and Paragraph 1 of Article 89, which is the general provision regarding application for the commencement of a disciplinary action, in Paragraph 1 of Article 97-4. It is also advisable to amend the Act to allow Legal Ethics & Professional Conduct Council to submit to the National Assembly the list of names of retired public officials and a statement of business of the retired public officials that it acquired under Paragraph 1 of Article 89-6, when retired public official becomes candidate for public office which requires personnel hearing at National Assembly, as the amendment will strengthen credibility of public service and strike balance between regulation of attorney-at-law retired from a public office and retired public official.