변호사보수에 관한 고찰 -보수의 적정성, 성공보수 및 기타 관련 법리들에 관하여-

Abstract

According to the Article 2 of the “Attorney-At-Law Act”, each attorney-at-law shall perform his or her duties independently and freely as a legal professional of public nature. This reflects the status of a lawyer in our society, whose profession inherently has a public character. In the same line, the Korean Supreme Court (hereinafter ‘the Court’) has traditionally denied the merchant character of the status of a lawyer. On the other while, however, the Court acknowledges that a lawyer can request his or her client to pay the legal fees even if there is no explicit contract of legal fees with the client. Also, the Court has sustained its position that the legal fees contract is valid unless the amount is too big to satisfy the principles of good faith and equity rules. As for an average client who is not a lawyer, it is not always easy to find the amount proper and suitable in terms of the complexity and amount of work to be done by a lawyer. The Korean Bar Association once had its own ‘Rules about the Legal Fees’, under the above considerations. The Rules, however, were abolished at the end of the year 1999, due to the concerns about the possibility of monopoly of lawyers, which concerns are not fully agreed by the people at the present time. Even though I also think that the legal fees need to be under the principle of liberty of contract in a larger sense, at least some guidelines are needed. In this paper, I have also reviewed the matter of contingency fees. In 2015, the Court ruled a new decision about contingency legal fees of criminal cases, confirming that any contingency fees of criminal cases will be invalid from the point of time of the Court decision. The Court’s prohibition of the contingency fees of criminal cases is not comprehensible, since it had long acknowledged the validity of the contingency fees contract regardless of the kind of the related case whether it be criminal or civil or whatsoever. Also, given that the contingency fees are needed by an indigent client and can keep the lawyer’s eagerness to win the case, contingency fees need to be valid continuously regardless of the kind of case related. In this paper, I have also reviewed other relevant legal matters such as non-refundable agreement, prohibition of lawyers’ taking over subjects in dispute, prohibition of lawyers’ fee-sharing with any person who is not a lawyer. About the matter of non-refundable agreement, the Court’s position is quite reasonable that the agreement is valid unless the amount is too big to satisfy the principles of good faith and equity rules, which is in the same line with its position about the legal fees contract in general. As for the matter of prohibition of taking over subjects in dispute, I also agree with the translation of the Court that the ‘subjects in dispute’ means the rights in dispute. If I add one more to the translation, we should be wary of the possibility that any secret assignment of the right in dispute can be disguised in the form of the assignment of the subject property right after the dispute resolution. With regards to the prohibition of lawyers’ fee-sharing with any person who is not a lawyer, the basic idea of the legislation is to protect the publicity and independence of a lawyer. The publicity and independence of a lawyer is very essential to the existence of the legal profession. I generally agree with the current law that it helps keep the independence of a lawyer, which will finally keep the public character of the legal profession. Given the globalization and specialization of the legal profession, it will be better if we add one exception to the current law. Fee-sharing with other expertise who is not a lawyer to win the case, needs to be allowed to further the international competitiveness of the lawyers.