변호사법 제31조 제1항 제1호 위반 소송행위의 효력 및 배제방법

Abstract

When a perseon become a legal counsel in violation of Article 31, Paragraph 1, first Subparagraph of the Attorney-at-Law Act, which stipulates the duty of a lawyer to avoid conflicts of interest, most theories and precedents agrees that if the opponent objects on the vitolation of regulation, litigation actions by the legal counsel should be nulified. The author agree on this view. However, in addition to excluding the effect of such litigation after the actions, there are several procedural issues surrounding litigation in violation of the above provisions of the Attorney-at-Law Act, but there has been no active discussion or precedents presenting legal principles regarding these issues. This was the case in Japan, which has similar Attorney-at-Law Act and Civil procedure Act systems.
 Japan's Supreme Court, through its decision in 2017, for the first time clarified legal principles regarding exclusion methods on litigation that violate the above Attorney-at-Law Act and several procedural issues on the appeal procedures. The other party's objection is not simply a request for the court to exercise its authority, but is a right of application that imposes a duty of response to the court. In case of dissent from the court's judgment, an immediate appeal must be made by analogically applying the provisions regarding judge recusal, and the person who can object is only the party and the counsel cannot be the person with the right to immediate appeal. Although not explicitly stated, it can be seen as an acknowledgment that the court's decision to exclude litigation is based on the method of decision. The discussions in Japan appears to be generally positive on the Supreme Court's rulling.
 The purpose of the above provisions of the Attorney-at-Law Act is to protect the parties, and the issue of whether the lawyer can participate in the lawsuit raised during the pending lawsuit needs to be quickly decided, and considering the fact that both the opponent and the party that trusted and appointed the lawyer need to avoid unforeseen damage, the above judgment of the Supreme Court can be agreed.
 Considering the fact that discussions in Korea and Japan regarding the effectiveness of litigation in violation of the Attorney-at-Law Act were similary developed until the above Supreme Court decision, Japan's precedents and discussions can be used as a sufficient reference in Korea. Not only in Korea but also in Japan, the legal principles regarding issues surrounding litigation violations of the above provisions of the Attorney-at-Law Act are still being formed. We hope that more in-depth discussions will develop by accumulating more precedents on this issue and by actively referring to discussions in Japan and other countries.