변호사의 품위유지의무와 직무 외 비행

초록

The Attorneys-at-Law Act defines “the cases in which a lawyer does an act that damages dignity as a lawyer, no matter whether it is intra-professional or extra-professional” as causes for disciplinary action. By this, the causes of disciplinary action on lawyers expand from the conduct related to the duties to “private misconduct” or “non-professional misconduct (extra-professional misconduct).” It cannot but be judged by the sound social norm in concrete cases, concerning what the lawyer’s dignity is, and what action has impaired the lawyer’s dignity. According to the Constitution Court, “dignity as a lawyer” refers to “the personality that suffers nothing by comparison to perform the duty of the legal profession as a lawyer that has missions of the defense of the basic human rights and realization of social justice” and it judged that it does not violate the principle of clarity since lawyers can understand the meaning, rationally. However, concerning how the lawyer’s dignity has been damaged through extra-professional misconduct, it is necessary to reflect on whether it is the moral standard of the ambiguous concept of “dignity” or not. This study would investigate the status of disciplinary action on extra-professional misconduct by the Korean Bar Association through the cases of disciplinary action on the violation of the dignity maintenance duty of lawyers from 2006 through 2014, especially, the statistics of extra-professional misconduct and discuss the problems and improvement directions of the disciplinary action on extra-professional misconduct. Disciplinary action on lawyers’ misconduct should be treated by legal logic from the angle of the law, not from the angle of ethics. Cases should be taken as causes for disciplinary action, only if its relevance with public interest and impact on job performance have been proven, instead of all extra-professional misconduct. In addition, in terms of the freedom to occupation, like the exercise of the state’s rights to punish, the rights to punish the lawyers should also be exercised to the minimum. Therefore, it would be necessary to start serious and courageous consideration of the disciplinary action on the lawyers’ extra-professional misconduct, reflecting the reality they encounter and not abandoning the jurists’ social responsibility.

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