Korean beommusa lawyer system is a system established from the modernization of the country.
Act no. 1 of 1895 ‘Court Organization Act’ was enacted and promulgated, causing the judiciary to separate and become indepnedent from the administration, and the origins of beommusa lawyer system shares roots with the creation of legal area related to the judicial agencies.
Through the enforcement of a new trial system by the promulgation of Ministry of Justice Decree No. 3 ‘Rules on Civil and Criminal Litigations’ dated April 29, 1895 which introduced scrivener system (the predecessor of lawyer system), the lawyer system took its root in Korea and the scrivener system was practically approved.
Two years after, on September 4, 1897, 13 articles in ‘Bylaws on Scrivener’s Office’ were enacted via the decree of Ministry of Justice.
These bylaws on scrivener’s office is the first law in Korea on beommusa lawyers and can be said to have set the origins of beommusa lawyer system.
The details of the bylaws include signboards of scrivener’s office (Article 2 of the Bylaws), units (Article 3 of the Bylaws), scrivener’s fees (Article 4 of the Bylaws), methods on preparation of documents (Articles 5-9 of the Bylaws), and penalties (Article 10 of the Bylaws).
In addition, Rules on Certification of Land, which introduced the system of certification of land and mortgage ownership, was enacted and enforced on December 1, 1906; such system became the predecessor of the current day registration system.
It was the work of scriveners to prepare documents to get these certifications acknowledged, and the beommusa lawyers today still play the same roles.
However, at that time, scriveners were not divided into judicial and administrative scriveners. Through the permission of the authorities, they customarily operated scrivenery for all documents. The authorities later enacted “Rules on Supervision of Scrivenery” on July 22, 1915 and announced the rules as Decree of Department of Superintendant for Police Affairs by prescribing the limits and responsibilities of and remuneration for the scrivenery, thus institutionalizing the scrivenery, which existed as a scrivener’s office within the court, to be ‘commissioned by other persons to prepare documents at a fee’, and the rules required scriveners to receive licenses from the Commissioner of Police Affairs or the head of competent police offices according to their service locations.
At the time, Japan also operated scrivenery without dividing them into judicial and administrative scriveners, and the judicial scrivener system in Japan was established after Act No. 48 ‘Judicial Scriveners Act’ and Decree of Ministry of Justice No. 9 ‘Bylaws on Enforcement of Judicial Scriveners Act’ were enacted and promulgated on April 10 and June 11, 1919 respectively.
5 years therefrom, although prescribed by the Japanese Empire, ‘Decree on Korean Judicial Scriveners’, the first Korean law on judicial scriveners, and ‘Enforcement Rules of Decree on Korean Judicial Scriveners’ were enacted on December 24, 1924 and March 16, 1925 respectively and enforced concurrently on May 1, 1925, completely separating the judicial scrivenery from administrative scrivenery and institutionalizing the Korean judicial scrivenery.
In May 1, 1935, ‘Decree on Korean Judicial Scriveners’ and its Enforcement Rules were amended and enforced by Regulation No. 7. The amended Decree and its Enforcement Rules were applied until the promulgation and enforcement of United States Military Government Act No. 195 ‘Judicial Scriveners Act’ after independence.
Korea applied Japanese Judicial Scriveners Act even after gaining its independence, and only from May 18, 1948, a transitional Judicial Scriveners Act was enforced by United States Military Government Act No. 195.
The US Military Government Act No. 195 ‘Judicial Scriveners Act’ stipulates that ‘judicial scriveners shall be commissioned by other persons to prepare documents to be submitted to courts, prosecutor’s offices, and other judicial institutions’ and ‘Minister of Justice shall permit judicial scriveners’ and repealed Decree on Korean Judicial Scriveners promulgated and enforced under Regulation No. 5 dated December 24, 1924, but also stipulates that the Enforcement Rules of Decree on Korean Judicial Scriveners enacted and enforced under Government General Decree No. 13 dated March 16, 1925 shall sustain their effects under the Enforcement Rules under the US Military Government Act.
Korean Constitution was enacted on July 17, 1948 and the Government of the Republic of Korea was set up, but the newly independent country experienced a lot of chaos, including Korean War which broke out in 1950, the Act No. 317, the Judicial Scriveners Act, was only enacted in the National Assembly of the Republic of Korea after the ceasefire on April 3, 1954 and Enforcement Rules of the Judicial Scriveners Act was stipulated on July 5 in the same year as the Supreme Court Rules No. 21.
This Act prescribed that ‘the judicial scrivener in this Act shall refer to the persons who carry out the preparation of documents to present to courts or public prosecutor’s office as commissioned by other persons’ and greatly increased the scope of work from the one applied by the Japanese Judicial Scriveners Act via Decree on Korean Judicial Scriveners.
Through this legislature process, the national assembly of our country recognized the status of judicial scriveners as the legal informant for the citizens.
Korea’s first Judicial Scriveners Act prescribed that the chief of competent district court shall approve the judicial scriveners, and that the judicial scriveners shall be affiliated with competent district court and supervised by the chief of affiliated district court.
Thereafter, the change in regime by April Revolution in 1960 and 5.16 Military Coup d’Etat in 1961 reformed various social areas, and it was at the time that a new Judicial Scriveners Act was enacted and announced as Act No. 1,333 dated April 25, 1963 and enforced from May 1 of the same year to readjust judicial scrivener system and establish their status.
Unlike the previous Judicial Scriveners Act which was a brief act (16 main articles and 3 addenda), the newly enacted Judicial Scriveners Act was composed of 7 sections, 41 articles and 3 addenda which raised the status of judicial scriveners and granted legal rights to Korean Association of Judicial Scriveners which had remained as a private organization until then.
In particular, Article 1 of the newly enacted Judicial Scriveners Act stipulated that ‘the purpose of this Act is to establish the judicial scrivener system, and this is significant that the country acknowledged the necessity of judicial scrivenery as a social and national system.
Moreover, the Act stipulated judicial scriveners’ approval qualification requirements, which was previously prescribed to determine by Rules of the Supreme Court, and required permitted judicial scriveners to receive approval from the chief of competent district court to move their office to a place outside the jurisdiction,
The new Act provided a lot of new stipulations on rights and obligations of judicial scriveners which were not given in the old Act. The new stipulations included the rights to be remunerated, the obligations to join as a member of Korea Association of Judicial Scrivener, and stipulations on compliance to the rules of the association and payment of membership fees.
The new Act especially stipulated organization of Association of Judicial Scriveners, which had existed as a private organization during the enforcement of old Act, as a legal and social organization that can strongly exhibit its functions to enable smooth operation of judicial scrivenery and securement of protection of rights of the citizens.
In accordance with the Act (Article 3 of the Addenda), each Association of Judicial Scriveners held inaugural assembly and was established in June 1963, and Korea Association of Judicial Scrivener, the union of all associations, held its inaugural assembly and was officially established on July 22, 1963.
The special thing to note here is that the new Act granted Association of Judicial Scriveners with the right to establish remuneration which abolished the rules on remuneration and ancillary clerical commissions that were originally determined under the rules of the Supreme Court and required the Association to establish and implement remuneration under the authorization from the Supreme Court.
Moreover, the Act, in principle, placed the supervision on each Association of Judicial Scriveners and Korea Association of Judicial Scrivener under the rights of the Chief Justice of the Supreme Court, but also enabled the Chief Justice to delegate the supervision of each Association of Judicial Scriveners to the chief of each competent district court.
Besides, the Act established penalty provisions for the performance of judicial scrivenery by someone other than judicial scriveners or the violence of the law by judicial scriveners to rectify the disorders in judicial administrative operations. The Act also established new regulations on judicial scrivener qualification test which enabled the persons who passed the test to receive authorization from competent district court and work in scrivenery.
Korea Association of Judicial Scrivener passed a resolution on amendment bill for the Judicial Scriveners Act which presents establishment of judicial scriveners’ scope of work and temporary closure, and incorporation of Association of Judicial Scriveners and Korea Association of Judicial Scriveners in the 6th General Assembly in 1968. National Assembly passed the bill on December 20, 1969 and the amended Act was promulgated and enforced as Act No. 2171 on January 1, 1970.
One of the characteristics of the amended Act is the stipulation of Article 2(1) of the Act which reads ‘a judicial scrivener shall prepare documents to present to a court or the public prosecutor’s office and documents related to other judicial affairs and shall act as a proxy on application for registration under paid delegation by other persons’. This stipulation legally acknowledges the proxy of application for registration delegated by clients. In addition, this amendment marked the birth of a very advanced amendment Act which grants the juristic personality to each Association of Judicial Scriveners and Korea Association.
Taking the opportunity of the amendment, the Association requested the Supreme Court to amend the rules on display of signboards of judicial scriveners’ offices as ‘Judicial Scrivener ○○○ Judicial Affairs Office’. The Supreme Court promulgated Rules of the Supreme Court No. 409 ‘Enforcement Rules of the Judicial Scriveners Act’ on March 27, 1970 which contains the amended form of signboards of judicial scriveners’ offices and judicial scriveners enjoyed improved social status than before.
During the emergency martial law, including suspension of the Constitution and dissolution of the National Assembly, which was announced after October Reformation on October 17, 1972, as a part of cleaning up of the judiciary, amendments to the Judicial Scriveners Act was resolved in emergency Cabinet meeting on February 20, 1973 and promulgated and enforced four days later.
The purposes for the amendments were to clean up the judiciary according to the ideology of the Reformation and placed a large number of penalty provisions. Further, the Act was amended in a way that requires the scope and details of works of judicial scriveners, their remunerations, quota, operation and installation of joint offices, and employment of clerical staffs to be stipulated by the Presidential Decree and the authorization, test, and training of judicial scriveners to be stipulated by the Rules of the Supreme Court, hence forming dualistic system of supervision of judicial scriveners.
However, these amendments stipulated a large number of administrative penalties, including mistakes in performance of works of judicial scriveners, in criminal penalty provisions, and even provided that the authorization of judicial scriveners may be canceled if they achieved poor results during judicial scrivener training, which was aimed to improve quality of judicial scriveners. On the other hand, Article 2 of the amended Enforcment Decree of the Judicial Scriveners Act prescribed the scope and details of works of judicial scriveners as ‘proxy of submission of prepared documents’; if it was interpreted as ‘judicial scriveners shall not have proxy rights for the act of application for registration and shall only have proxy rights to submit only the already prepared documents’, it would have brought mass confusion and inconvenience to judicial scriveners’ works, hence the amending the amended Act was a very urgent challenge.
Korea Association of Beommusa Lawyer prepared amendment bill for the Judicial Scriveners Act and paid much efforts to fulfill the Association’s long-cherished dreams. The amendments faced a number of failures, including abortion due to 12.12 Military Insurrection, but amid countless trials and hardships, the amendment bill was finally passed in 12th Assembly plenary session on April 8, 1986, marking the realization of first amendment of the Act in 13 years since the amendments were made by the Restoration Government in February 1973.
The amended Judicial Scriveners Act largely strengthened and improved functions of judicial scrivener system.
First, the qualifications of judicial scriveners were eased. Previously, only the persons who served in courts or public prosecutor’s offices for 7 years or above, who served in the post class of court’s assistant junior official or above, or who passed judicial scrivener examination and are authorized by chief of competent district court were eligible, but under the amendment, the persons who served for not less than 15 years in the post class of court’s junior clerk or junior clerk in prosecutor’s office were granted with the qualification, alongside with the persons who served for not less than 7 years in the post class of court’s assistant junior official or assistant junior official in public prosecutor’s office or who served for not less than 5 years in court’s junior administrative officer or junior administrative officer in public prosecutor’s office and who are recognized by the Chief Justice of the Supreme Court to have legal knowledge and capacity to perform works of a judicial scrivener.
Second, the supervisory authority over the judicial scriveners was unified to the Supreme Court, and the matters related to the works of the judicial scriveners, establishment of office and clerical staffs in judicial scrivener offices, which were determined by the Presidential Decree, were made to be prescribed by the Rules of the Supreme Court.
Third, regarding the recognition of qualifications for judicial scriveners, the existing authorization system by chief of competent district court was converted to the qualification recognition system in which the Chief Justice of the Supreme Court will recognize the qualifications of those with a certain experience; in another words, the existing authorization system by chief of competent district court, which was concerned over its negative effects, was reformed to registration system.
To prevent the regional deviations that may result therefrom, ‘judicial scrivener for limited area system’ was adopted. This system allowed judicial scriveners for limited area to practice in a certain area for a certain period of not less than 5 years before they were allowed to change their place of registration to anywhere else in the country like ordinary judicial scriveners. The amendment also allowed chiefs of competent district courts to conduct examination of judicial scriveners for limited area.
Fourth, the quota of judicial scriveners was previously determined by the Presidential Decree, but the amended Judicial Scriveners Act converted the system to registration system and the quota system was abolished. Last, the amendment required remuneration, which was previously determined by the Presidential Decree to be determined by Decree of the Ministry of Justice.
In 1988, Korea Association of Judicial Scrivener formulated another amendment to the amended Judicial Scriveners Act which was enforced from May 1986 to change the name of judicial scrivener, expand scope of work, and raise qualification requirements to enhance quality.
Accordingly, the Association prepared and submitted amendment bill to the National Assembly for legislation. The bill was unilaterally passed in the Assembly plenary session on December 19, 1989, promulgated as Act No. 4200 on January 13, 1990, and made historical debut on March 1, 1990.
With this, the name ‘beommusa lawyer’ was adopted for the first time in the history of judicial scrivener system, and the system was reborn as the ‘Beommusa Lawyer System’.
The beommusa lawyers Act which was promulgated on January 13, 1990 not only stipulated on the change of name from judicial scrivener to beommusa lawyer, but also clearly stipulated the scope of work in Article 2, granted autonomy to Association of Beommusa Lawyer for registration of beommusa lawyer in Article 6, and enabled determination of remuneration of beommusa lawyer by rules of Korea Association of Beommusa Lawyer and implementation of the same through authorization of the Chief Justice of the Supreme Court – the Act greatly enhanced the autonomy of beommusa lawyer than previous Judicial Scriveners Acts.
These amendments were made at the proposal of the Government to satisfy the demands for various legal affairs which were continuously increasing qualitatively and quantitatively, promote quality of beommusa lawyers, induce specialization and systematization of beommusa lawyer affairs, and reasonably improve beommusa lawyer system according to the Administration Reform Committee’s plans to improve professional qualification systems, and came into effect on January 1, 1997.
TThe main details of the amendments include: 1) grant of qualification of beommusa lawyer to narcotics investigation officials in prosecutor’s office and increase in beommusa lawyer qualification requirements by extending the length of service required for the qualification,
2) enhanced beommusa training by establishing beommusa lawyer training for those who will register as beommusa lawyer for better legal services,
3) changes to beommusa lawyer registration and establishment of registration review committee in Korea Association of Beommusa Lawyer,
4) introduction of compensation liability for losses incurred by deliberation or negligence of beommusa lawyers to protect people’s rights and relieve people’s distrust towards beommusa lawyers, and
5) promote systematization and specialization of the works of beommusa lawyers by introducing joint beommusa lawyer corporation system to respond to qualitative and quantitative changes in beommusa lawyer affairs, as qualitatively complex cases and various legal problems are raised.
Amendments to the amended Act which was enforced from January 1, 1997 were demanded to expand the beommusa lawyer’s scope of work to enhance public convenience in legal life and to improve and supplement some problems that occurred from the operation of the system.
Accordingly, amendment bills on unification of beommusa lawyer examination and on expansion of scope of work of beommusa lawyers passed the Conference of Supreme Court Justices respectively in February 2000 and on November 29, 2001 and was forwarded to the Ministry of Justice, and was filed at the National Assembly as the government bill on October 2, 2002. Then, through a number of reviews by the Legislation and Judiciary Sub-Committee, public hearing hosted by the National Assembly, and plenary session in the Legislation and Judiciary Committee, the bill encountered objections from relevant organizations.
To overcome the objections, the Association conducted active legislation activities, including continuous negotiations with relevant organizations; after two years of endeavors, the amendment bill passed the Assembly plenary session on February 26, 2003 and was enforced on September 13, 2003, fulfilling the long-cherished wish of the beommusa lawyers.
The main details of the amendments include: 1) addition of counseling on property acquisition and proxy of application for purchase or bidding in auction and public auction cases to the services rendered by beommusa lawyers to eradicate illegal auction brokers and protect properties of the people from their illegal acts and to contribute to the enhancement of convenience of people by maintaining the order in auction courts,
2) unification of the beommusa lawyer qualification acquisition requirement to the persons who passed the beommusa lawyer examination to guarantee the freedom to select occupations,
3) expansion of reasons to reject beommusa lawyer registration to the public officials who retired due to unlawful acts,
4) expulsion of the persons who cannot be employed as clerical staffs by means of disciplinary measures to secure reliability of beommusa lawyers, and
5) installation of beommusa lawyer qualification review committee in National Court Administration to review matters related to acquisition of beommusa lawyer qualification.
The beommusa lawyers Act as partially amended by Act No. 13953 on February 3, 2016 was enforced on August 4, 2016, 13 years after the amendment of the beommusa lawyers Act in 2003 which stipulated proxy of auction and public auction cases by beommusa lawyers. The 2016 amendment brought a lot of systematic changes, and it was not exaggerating to say that it was close to whole amendment of the Act.
The amended Act stipulated the Counselling and advice services that were naturally rendered in relation with the works of certified legal professionals, strengthened the liabilities for compensation for losses of clients, and eased beommusa lawyer firm establishment requirements, which leads to reforms that enables enlargement and systematization of beommusa lawyer firms, like attorney-at-law firms, to provide better services for clients. Via the amendments, the beommusa lawyers secured reliability and achieved systematic development.
The major details of the amendments are as follows:
First, a comprehensive regulation was added in Article 2(1)7 of the Act, which reads ‘incidental affairs, such as the provision of counseling and advice necessary to deal with the affairs prescribed in subparagraphs 1 through 6’.
Accordingly, the addition provided the basis for beommusa lawyers to provide legal counseling and advice necessary for handling works stipulated by the Act and to perform incidental affairs, hence giving the opportunity to expand and establish the scope of work of beommusa lawyers.
Second, in the first sentence of Article 14(4) of the Act, the composition required for establishment of joint beommusa lawyer office was eased from “three persons” to “two persons”.
The previous Act stipulated that “at least three persons” are necessary to establish joint office, hindering beommusa lawyers from opening the joint offices, but the amended Act eased the provision to “two persons”, making the establishment of joint offices easier and prepared the turning point for vitalization of joint offices.
Third, Article 26(3) through 26(7) was newly inserted. The amendment strengthened the instruments for guarantee of rights of people by restricting beommusa lawyers who did not purchase performance guarantee insurance or join a mutual-aid from performing the business of beommusa lawyers, and enabling chief of a district court to order a beommusa lawyer to suspend his/her business until the lawyer fulfills instruments on guarantee obligation to compensate damages.
Besides, the amendments abolished the 3rd beommusa lawyer examination (oral examination) which was conducted as a mere formality to substantialize the examination system, established beommusa firm (limited) system to activate incorporation of beommusa lawyer offices, and strengthened people’s right to choose beommusa lawyer’s legal services by preparing the regulations on disclosure of beommusa lawyer’s disciplinary action results.
Following the extensive amendments to the ‘beommusa lawyers Act’ in 2016, the amendments made in February 2020 stipulated the proxy of application for personal rehabilitation and bankruptcy cases in the Act.
Although most of the personal rehabilitation and bankruptcy cases were handled by beommusa lawyers, the fact that these affairs are not stipulated in the ‘beommusa lawyers Act’ did not correctly reflected the reality and aggravated inconveniences of people.
Hence, the amendment bill to stipulate the ‘proxy of application for personal rehabilitation and bankruptcy cases’ (new insertion of Article 2(1)6 of the Act) in the ’beommusa lawyers Act’ was submitted to the National Assembly on January 10, 2018 (chief authored by Assemblywoman Ms. Lee Eun-jae). After 2 years of heated debate in the National Assembly, the bill finally passed the Assembly plenary session on January 9, 2020 and was enforced on June 9, 2020.
According to the amended Act, the persons suffering from unbearable liabilities now no longer need to produce power of attorney for each personal rehabilitation and bankruptcy case procedure. A single power of attorney is now sufficient to enable them to enjoy quick and convenient services, hence largely improving people’s access to legal services.
Most of Koreans prefer beommusa lawyers to attorneys-at-law, as it is easier and cheaper to request beommusa lawyers to prepare documents to be submitted to courts and public prosecutor’s offices.
Given the high praises for contributions of beommusa lawyers in legal services for people for more than 100 years, since the birth of modern judicial scriveners in Korea in 1897, beommusa lawyer system will exist for a long time and continue to contribute to the sound development of the judicial system of Korea.
Needless to say, to respond to such social demands, the awareness and commitment of each individual beommusa lawyer to improve professional knowledge and reliability are required.
The first article in the current beommusa lawyers Act stipulates that ‘the purpose of this Act is to enhance the convenience of citizens’ lives with respect to legal affairs and to contribute to the sound development of the judicial system by establishing the certified judicial scrivener system’, and expects beommusa lawyers to fulfill social missions and roles.