‘변호사가 아닌 자’의 사실조사행위 및 자료수집행위의 법적 성격에 대한 고찰 - 대법원 2015. 7. 9. 선고 2014도16204판결을 중심으로 -

Abstract

Article 109, paragraph (1) of the Attorney-At-Law Act for the time being in force has a provision to prohibit the ‘provision of legal service by a person who is not an attorney-at-law’ and the ‘receipt of benefits’ in compensation for providing the legal service. Since the same Article illustrates examination, representation and arbitration, etc. as the specific type of legal service and further regulates it by making use of words having the comprehensive meanings of ‘other legal service’, it is required to have the necessity for more clarifying the meaning of this amorphous and broad concept because it is highly probable to cause some problems in which the amorphous and broad concept of the prescribed ‘legal service’ includes to the scope of the legal service a kind of ‘factual acts’, which don’t bring any legal effect, as well as several kinds of legal service to be listed as an example in the same provision in the event that it is excessively widely interpreted at the interpretation discretion of a judge. In this regard, it is required to clarify more any interpretation confusion and unclear legal characteristics which may be caused by the amorphous and broad concept of ‘legal service’ under the provision of Article 109, paragraph (1) of the Attorney-At-Law Act. In this study, having views on this interpretation theory, the main subject of discussion includes the review of whether the fact-finding activities and data collection activities as conducted by a person who is not an attorney-at-law are included to the scope of ‘other legal service’ as provided in the same Article. Specially, we criticize some problems such as the conflicting points between the original judgment and Supreme Court’s decision (object judgment) about the legal characteristics of the fact-finding activities and data collection activities as conducted by a person who is not an attorney-at-law; the interpretation of the concept about the ‘provision of legal service by a person who is not an attorney-at-law’ and the ‘receipt of benefits’, which are the elements of a crime as set forth in the same provision; and the deviation from the interpretation discretion of the object judgment in which any private investigation activities such as fact-findings to be conducted by a person who is not an attorney-at-law is covered by the other legal service’ as provided in Article 109, paragraph (1) of the Attorney-At-Law Act, and additionally presents the reinterpretation of this writer on them.