청탁금지법상 공직자가 음식물ㆍ경조사비ㆍ선물 등의 금품을 받을 수 있는 한계

정형근(Jung Hyung Keun) 경희법학연구소 2018 경희법학 Vol.53 No.2

Although the Improper Solicitation and Graft Acts prohibits a public official or relevant person from accepting financial or other advantages, there is an exceptional rule for allowing it. The prohibition of financial or other advantage describes that a public official or relevant person shall not accept, request, or promise tro receive, any financial or other advantage in excess of one million won at a time from the same person, regardless of the relationship between such offer and his or her duties. Accepting financial or other advantage which is not related with his or her duties shall be punished, which sets against the Criminal Act by which a public official will be punished for accepting bribe in connection with his or her duties. When a public official accepts financial or other advantages in connection with his or her duties, it should be examined whether such an act was given in exchange of any favors. In addition, a public official or relevant person shall not accept financial or other advantages in value of less than 100 million won in connection with his or her duties regardless of whether such offer if given in exchange of any favors. The violation of this rule shall be subject to a fine for negligence. In case it is in connection with his or her duties and in exchange of any favors as well, it violates both Criminal Act’s Acceptance of Bribe and The Improper Solicitation and Graft Act. However, in such a case, it is debatable which law is supposed to be applied. It is probable that the investigating authorities would consider it as accepting bribe, while the public institution would rather impose a fine for negligence. It is necessary to observe how this rule is going to be practiced. Although the Improper Solicitation and Graft Act prohibits the acceptance of financial or other advantages, there are exceptions when it is allowed to accept financial or other advantages. Among such exceptions, it is allowed to accept food and drink, congratulatory or condolence money, gifts, or other items that are offered to facilitate performance of duties or for social relationships, rituals, or assistance to festivities and funerals, the vale of which is within the limit provided by Presidential Decree. Of course, the amount is set by the enforcement ordinance of the Improper Solicitation and Graft Act. According to the updated the enforcement ordinance of the Improper Solicitation and Graft Act, it is allowed to offer up to 50,000 won for congratulatory or condolence money while the value of artifical flowers or flower bed up to 100,000 won. The value of give is limited to 50,000 won while the value of agricultural and marine products and the processed product of them is limited to 100,000 won. But requesting congratulatory or condolence money for a public official or relevent person’s assistance to festivities or funerals should be prohibited. Especially, when such request is in connection with a public official’s duties and it is in exchange of any favors. For example, a professor shall not request students to assist his or her festivities or funerals. It is also prohibited a professor from accepting birthday cake and a bouquet during school hours. In this case, because the professor is in the position to guide and evaluate students, it is considered being in connection with his or her duties and in exchange of any favors. If the professor is a public school employee, such an act can be considered as acceptance of bribe. Likewise, if the professor is a private school employee, such an act shall be considered as violating Criminal Act’s Receiving or Giving Bribe bvy Breach of Trust. Of course it also violates the Improper Solicitation and Graft Act. As a result, accepting financial or other advantages prohibited in the Improper Solicitation and Graft Act will lead to violating Criminal Act as well.

변호사시험 합격자의 6개월 실무수습 제도

정형근(Jung Hyung Keun) 경희법학연구소 2018 경희법학 Vol.53 No.1

The Attorney-At-Law Act describes the requirements for establishment of Law Offices, etc. for a person who has passed a bar examination and the restrictions on case acceptance by bar examination passers. An attorney-at-law who has passed a bar examination shall neither establish a law firm independently nor belong to a law firm, limited liability law firm and law firm partnership unless he/she has engaged not less than 6 months in legal affairs or has completed mandatory training by Korean Bar Association. This is called either a practical apprenticeship training system or practical training for new admittees to the Korean Bar Association. This system has been established considering the practical education of law schools might be insufficient. However, the operation of this system for past 6 years has been causing a lot of problems. In an agency engaging in legal affairs must have an attorney-at-law who has at least 5 years of experience. Yet the period of practical training is accepted even if that attorney-at-law leaves the agency. When a person is engaged in legal affairs, there is no limit on what type of legal affairs should be given to the trainee. The practical training is considered complete by simply attending at the agency engaging in legal affairs for 6 months. Furthermore, those trainees are not paid by senior attorneys-at-law during that training period. As a result, it is reported that many senior attorneys-at-law exploit those new attorneys-at-law. The training by Korean Bar Association is centered around lectures, which lacks the opportunity for improving one s skill for practical legal affairs. Because the mandatory training is becoming a heavy burden for Korean Bar Association, Judicial Research & Training Institute is expected to take over the duty of practical training duty for new admittees. Consequently, the existing system of practical training for new admittees to the Korean Bar is functioning only for preventing new attorney-at-law from establishing a legal practice. So it is suggested to repeal the current system and change it to Training & Education of Attorneys-at-Law, Attorney-At-Law Act, Article 85.

질서위반행위규제법에 대한 고찰

정형근 ( Jung Hyung-keun ) 한국외국어대학교 법학연구소 2009 외법논집 Vol.33 No.3

Eine Ordnungswidrigkeit ist eine tatbestandsmäßige, rechtswidrige und vorwerfbare Handlung, die mit Geldbuße bedroht ist. Diese Formelle Definition sagt jedoch nichts daruber aus, in welchen Fällen rechtswidrigen Verhaltens der Gesetzgeber eine Geldbuße androhen soll und darf und nicht vielmehr eine kriminelle Strafe oder uberhaupt keine Sanktion. Strafrecht ist Teil des Öffentlichen Rechts, nimmt in diesem Bereich aber eine Sonderstellung ein. Das Ordnungswidrigkeitenrecht gehört zum Strafrecht im weiteren Sinn. In seinem Mittelpunkt steht das rechtswidrige und schuldhafte Fehlverhalten eines Menschen, an welches das Ordnungswidrigkeitenrecht ahndende, also repressive Rechtsfolgen(Sanktionen) knupft. Anlaß des Eingreifens von Ordnungswidrigkeitenrecht ist der Normverstoß eines Menschen, die Zuwiderhandlung gegen sanktionsbewehrte rechtliche Verbote order Gebote, die zum Schutz von Gutern aufgestellt worden sind. Wie im (Kriminal-)Strafrecht im engeren Sinn sind diese ubertretenen Verhaltensnormen durch hoheitlichen Rechtssetzungsakt in Kraft gesetzt und mit dem an den Normadressaten gerichteten Befehl zur Normbefolgung ausgestattet. Die Normubertretung ist die rechtliche Voraussetzung fur die Sanktionsverhängung. Das Strafrecht im engeren Sinn nennt diese Sanktionsvoraussetzung Straftat, das Ordnungswidrigkeitenrecht nennt sie Ordnungswidrigkeit. Der Begriff Ordnungswidrigkeit hat damit im Ordnungswidrigkeitenrecht dieselbe Funktion wie der Begriff Straftat im Strafrecht. Beides sind Grundbegriffe ihres jeweiligen Rechtsgebiets. So wie Straftat eine Abbreviatur der Feststellung ist, daß ein menschliches Verhalten alle Voraussetzungen der Rechtsfolge Strafe erfullt, so bringt die Bezeichnung eines Verhaltens als Ordnungswidrigkeit zum Ausdruck, daß dieses Verhalten alle Ahndungsvoraussetzungen der Ordnungswidrigkeitenrechtlichen Sanktion Geldbuße erfullt.

집중효가 발생하는 건축신고에 관한 법률적 검토

정형근 ( Jung Hyung-keun ) 한국외국어대학교 법학연구소 2010 외법논집 Vol.34 No.1

According to construction law, construction of a building that requires construction report may be done as long as report is filed with administrative office and does not require acceptance of the administrative office. And here, this one single report of construction, once it is filed, produces an effect of passing numerous administrative treatments just like construction approval and such effect is called concentrated effect. However, exemption of a series of approval requirement screening for one single report of construction may be deemed an interpretation that offers excessive advantage to construction right holder. There is no stipulation whether the concentrated effect by construction report take place the moment the construction report arrives at or is accepted by the administrative office. In case of construction report that produces concentrated effect, the administrative office in charge may well regard the construction report accepted only after permission or approval is determined through practical screening for the intended permission or approval. Hence, in case of construction report that requires concentrated effect, the construction report shall be regarded as required of acceptance by administrative office. Therefore, any construction report that requires acceptance by administrative office shall be a case liable to appellant lawsuit. Nevertheless, not all the reports that produce concentrated effect may be regarded as cases that require acceptance by administrative office, but each report shall be determined in consideration of the legal nature.

변호사의 비밀유지의무

정형근 ( Jung Hyung-keun ) 한국외국어대학교 법학연구소 2011 외법논집 Vol.35 No.4

Attorney-at-law Act of Korea provides that no attorney-at-law or former Attorney-at-law shall disclose any confidential matter that he/she has learned in the course of performing his/her duties. Provided, That the same shall not apply to cases where such disclosure of confidential matter is especially prescribed otherwise by Acts(Article 26). And, The Bill of Morality for Attorney of Korea provides that Lawyers can disclose information revealed in confidence by clients if it is necessary to defend themselves against accusations of malpractice and public interest(The Rule 23). Lawyers’ duty of maintain confidentiality is one of the most important, obligations to their clients that lawyers undertake. They must not disclose such information to anyone else, use it to the clients’ detriment, or take advantage of that information in any way. I will try to make sense of the duty of confidentiality and its limits. There are two main sources that place obligations of confidentiality on lawyers: the law of evidence(Criminal Procedure Act) and the professional rules(The Bill of Morality for Attorney). Under evidentiary rules, lawyers are entitled and required to keep confidential all communications between clients and themselves that pertain to the giving of legal advice and assistance. This is a privilege to the client, and it applies regardless of whether litigation is involved or is imminent. The professional duty of confidentiality is broader than the attorney-client privilege of evidence law. The professional duty protects nearly all information related to the representation, whatever its source; the privilege extends only to information transmitted directly between client and lawyer. While the duty is fundamental, it is not absolute. There are limits to the scope of the duty.

변호사법상 법무법인등에 취업한 퇴직공직자에 관한 고찰

정형근(Jung Hyung-Keun) 경희법학연구소 2020 경희법학 Vol.55 No.2

The Legal Ethics and Professional Conduct Council (hereinafter referred to as the “Ethics Council”) shall be established in order to establish legal ethics and build a healthy legal climate. The Ethics Council shall perform the work in each of the following subparagraphs: 1. Consulting about statutes and regulations, the legal system and policies for the establishment of legal ethics; 2. Analysis of the state of legal ethics and measures against violations of legal ethics; 3. Applications for the commencement of disciplinary action against those who violate statutes and regulations pertaining to legal ethics or request for investigations of such persons; 4. Other work, such as consulting about matters necessary to establish legal ethics. When a person liable for registration of property referred to in Article 3 of the Public Service Ethics Act, or a retired public official, as non-attorney-at-law, who has served in a position of a specific grade prescribed by Presidential Decree or higher one (referred to as “retired public official” in this Article) is employed by a law firm, limited liability law firm or law firm partnership; or joint venture law firm as defined in subparagraph 9 of Article 2 of the Foreign Legal Consultant Act (hereafter referred to as “law firm, etc.” in this Article), such law firm, etc. shall submit a list of names of retired public officials whom it employs, to the local bar association having jurisdiction over its principal office without delay, and prepare and submit a statement of business of retired public officials of the preceding year in which the details of business activities, etc. are included, to the local bar association having jurisdiction over its principal office by the last day of January of each year. Employment referred to ‘retired public officials entire activities to receive wages, salaries and others in any name, such as money and articles or economic benefits in return for the provision of labor or service. Every local bar association shall submit data it receives pursuant to paragraph (1), to the Ethics Council. The chairperson of the Ethics Council may, when he or she finds as a result of examining data submitted pursuant to paragraph (4) that the relevant persons are suspected of having grounds for disciplinary action or committing any illegal act, file an application for the commencement of disciplinary proceedings against such persons with the President of the Korean Bar Association or request the investigation of such persons to the chief prosecutor of a district prosecutors office. Statements of duties referred to in paragraph (1) shall include the details of business activities of retired public officials, such as cases and affairs in which they are involved and other matters prescribed by Presidential Decree. The following shall be entered into a name list submitted pursuant to Article 89-6 (1) of the Act: 1. Name of a retired public official; 2. Resident registration number of a retired public official; 3. Name of the institution for which a retired public official worked and his/her Grade at the time of retirement; 4. Date of employment when a retired public official worked at a law firm, etc.; 5. An attorney-at-law who is responsible for submission of the name list.

변호사의 보수에 관한 고찰

정형근 ( Hyung Keun Jung ) 법조협회 2010 법조 Vol.59 No.6

변호사는 헌법상 인정되는 인권옹호를 사명으로 하는 준사법기관에 해당된다. 변호사는 의뢰인으로부터 보수를 받고 법률지식으로 의뢰인의 이익을 위하여 직무를 수행한다. 전문소송기술 등 무형의 용역을 제공하여 그 대가를 받는다는 점에서는 일응 상인의 영업행위와 유사한 성격을 갖는다. 그러나 변호사는 공공성을 지닌 법률전문직에 해당되고 그 직무는 영업이 아니다. 따라서 변호사는 영리를 목적으로 활동할 수 없다는 것이 헌법과 변호사법 및 변호사윤리장전의 정신이다. 변호사가 일반 사업자와 구별되는 것은 영리를 목적으로 직무를 수행하는 것이 아니라는 점과, 변호사의 보수는 직무수행에 대한 대가적 거래의 대상이 될 수 없다는 점이다. 변호사와 의뢰인의 관계는 위임계약이지만, 변호사와 의뢰인의 관계에 민법상의 위임규정을 그대로 적용할 수 없는 점도 있다. 그 중에서 수임인의 보수에 관한 규정이다. 변호사 보수는 변호사가 의뢰인과의 수임계약의 결과로 의뢰인이 변호사에게 지불하는 대가를 말한다. 민법상 위임계약에서 수임인은 특별한 약정이 없으면 위임인에 대하여 보수를 청구하지 못하는 것이 원칙이다(민법 제686조 제1항). 그러나 변호사는 의뢰인과 명시적으로 보수지급에 관한 특약이 없었더라도, 보수 지급에 관한 암묵적인 합의가 있는 것으로 인정하여 변호사에게 보수청구권이 있다고 해석된다. 대한변호사협회 회칙은 변호사의 보수에 관하여 규정하고 있다. ① 변호사·법무법인·법무법인(유한)·법무조합은 그 직무에 관하여 사무보수, 사건보수 및 실비변상을 받을 수 있다(회칙 제44조 제1항). ② 사무보수는 상담료, 감정료, 문서작성료 및 고문료로 나눌 수 있으며, ③ 사건보수는 그 사건의 종류에 따라 착수금과 성공보수로 나눌 수 있으며, ④ 실비변상은 수임사무 및 사건의 처리비용과 여비 등으로 나눌 수 있다(대한변호사협회 회칙 제44조 제2항). 여러 종류의 보수로 구분할 수 있지만, 착수금과 성공보수가 대표적인 변호사의 보수이다. 성공보수에 대하여 그 적법성 여부에 관한 논쟁도 있었지만, 현재에는 그 금액의 적정성 여부가 문제되고 있다. 현행 변호사 보수는 당사자간의 보수약정으로 정해지고 있으며, 보수에 관한 적정한 기준을 법정하는 노력이 필요하다.

변호사의 직업윤리에 대한 고찰

정형근 ( Hyung Keun Jung ) 법조협회 2009 법조 Vol.58 No.6

A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice. As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client`s legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client`s position under the rules of the adversary system. In addition to these representational functions, a lawyer may serve as a third-party neutral, a nonrepresentational role helping the parties to resolve a dispute or other matter. Some of these Rules apply directly to lawyers who are or have served as third-party neutrals. In all professional functions a lawyer should be competent, prompt and diligent. A lawyer should maintain communication with a client concerning the representation. A lawyer should keep in confidence information relating to representation of a client except so far as disclosure is required or permitted by the Rules of Professional Conduct or other law. In representing a client, a lawyer shall exercise independent professional judgement and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client`s situation.

청탁금지법상 공직자등의 직무와 관련한 금품등의 수수 금지

정형근(Jung, Hyung-Keun) 전북대학교 법학연구소 2018 법학연구 Vol.57 No.-

The case started when the accuser delivered a box of rice cake which is worth 45,000 won to a police officer who is in charge of the affair. Because it is considered that the accuser offered financial or other advantage not exceeding one million won to the police officer in connection with his duty, the accuser was charged a negligence fine of 90,000 won corresponding to the double amount of the financial or other advantage offered. The improper Solicitation and Graft Act includes the Prohibition of Improper Solicitations and the Prohibition of Acceptance of Financial or other Advantages. Public official or relevant person shall not accept unacceptable financial or other advantage and shall not accept, request, or promise to receive as well. In addition, no one shall offer, promise to offer, or express any intention to offer, any unacceptable financial or other advantage to any public official or relevant person, or to his or her spouse. The Order adjudicated the accuser to be guilty of violating this rule by offering financial or other advantage to the police officer. The Improper Solicitation and Graft Act applies different amount of fine depending on the value of the financial or other advantages received by public official or relevant person. If the value of financial or other advantage exceeds one million won at a time, the recipient shall be punished regardless of the relationship between such offer and his or her duties by imprisonment for not more than three years or by a fine not exceeding 30 million won. The same punishment shall be applied when the financial or other advantage exceeds three million won in a fiscal year. In order to prevent the acceptance of financial or other advantage more effectively, it is necessary to reduce the upper limit of acceptable amount in a fiscal year. Public official or relevant person will be punished regardless of the relationship between such offer and his or her duties based on this rule. This characterizes the Improper Solicitation and Graft Act and that is why this law was established. In the Criminal Act, a public official will not be punished for accepting bribe as long as receiving, demanding or promising to accept a bribe is not in connection with his/her duties. Public official or relevant person shall not accept, request, or promise to receive any financial or other advantage not exceeding one million won in connection with his/her duties. This law applies, in connection with his or her duties, regardless of whether such offer is given in exchange of any favors. Criminal Acts Acceptance of Bribe shall be additionally applied if such an act was in connection with his or her duties and such offer was given in exchange of any favors as well. Therefore, it would be proper to delete the phrase regardless of whether such offer is given in exchange of any favors in order to make the interpretation of the law easier.

법무법인의 소속 변호사에 대한 세무사등록거부처분의 당부 - 대법원 2016. 4. 28. 선고 2015두3911 판결 -

정형근 ( Jung Hyung-keun ) 법조협회 2016 법조 Vol.65 No.7

Certified tax accountant act enables certified lawyers to be certified tax accountants. A lawyer is granted to be not only a certified tax accountant but also automatically a patent attorney. Although it is partially stems from the lack of number of certified tax accountants and patent attorneys right after independence from Japan, their duties were considered to be part of lawyers`` duty. However, it is questionable that acquiring lawyer``s certification directly indicates their ability to perform certified tax accountant``s and patent attorney``s duties. It should be noted that all professions require their own specific knowledges and functions. Lawyers are in a severe battle for their professional boundaries against not only tax accountants and patent attorneys but also certified judicial scriveners and licensed real estate agents. Tax accountants and patent attorneys want to repeal the system of lawyer``s automatic certification. While Certified tax accountant act acknowledges the qualification as a certified tax accountant for lawyers, they restricted the condition for registration. Those who passed the 45th Jurisprudence examination in 2003 and before that year can register for a certified tax accountant. Whether a lawyer registered or not, they are not allowed to use the title certified tax accountant, which implies they only can commence tax agent services. It is very unusual for people who perform a certified tax accountant``s duty is not allowed to have his/her own corresponding title. Certified Tax Accountant Act prohibits the registration of an employee of any person running business for profit, or an executive officer, executive or employee of a profit-making corporation. Adjudication made it clear that it is wrong to refuse the registration of the plaintiff as an associated attorney-at law fall under the regulations described above. A law firm has been established for any attorney-at-law to perform his/her duties in a systematic and professional manner. According to commercial act a lawyer is neither a merchant-by nature of business nor a merchant-by legal construction. A law firm who performs duties of attorney-at-law is not a profit making organization. Therefore, the rule to refuse registration as a certified tax accountant is not applicable to the plaintiff as an associate attorney-at-law. Adjudication``s confirming this matter is significant. Now lawyers hold the key to maintaining qualification depending on how much they can contribute to the society with their newly granted certified tax accountants.