Abstract
Korea is one of the most litigation-prone societies on earth. That does not, however, necessarily mean that the Korean legal system offers easy access to justice. In analyzing access to justice in Korea, the Article mainly focuses on how attorney fee arrangements affect a litigant’s incentive to bring a lawsuit. At the outset, the Article explores the basic rules as to who pays fees and costs in civil litigation. In this regard, the Article discusses the Korean law on whether the loser can be ordered to pay the winner’s attorney fees. Next, the Article delves into the basic mechanism of attorney fee arrangements in Korea. The Article then addresses special issues including success-oriented fees, litigation insurance, and legal aid in terms of attorney fee allocation rules. In the Conclusion, I propose that in the context of civil procedure, the Filing Fees Act be incorporated into the Act on Costs for Civil Procedure, and that Filing Fees Rules and Rules Regarding Attorney Fees be incorporated into the Rules of Costs for Civil Procedure. I also provide some comments on contingency fee arrangements and pro se litigation.
This article was previously published at the Journal of Korea Law, Vol. X, No. 1 (2010), pp. 65–97. Reprinted and modified with the permission of the Journal of Korean Law. Associate Professor, Chung-Ang University School of Law in Seoul, Republic of Korea; J.S.D., Washington University School of Law, St. Louis, MO, USA; LL.M, Yonsei University College of Law, Seoul, Republic of Korea and University of Washington, Seattle, Washington, USA; LL.B, Yonsei University College of Law.
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Notes
- 1.
Warren E. Burger, Isn’t There a Better Way?, 68 A.B.A.J. 274, 275 (1982).
- 2.
Gyooho Lee, A Model as to Whether to Bring or Settle a Lawsuit and an Economic Analysis of Litigation Explosion in Civil Cases, Civil Procedure, Vol. 8, No. 2, at 12–16 (2004) (hereinafter referred to “Lee, Litigation Explosion.”).
- 3.
The National Court Administration (NCA) of the Supreme Court of Korea ed., Future of Civil Procedure, Journal of Korean Judicature, Vol. I, at 732–33 (2008).
- 4.
Id. at 733.
- 5.
See Hyun Seok Kim, Why do We Pursue “Oral Proceedings” in Our Legal System?, 7 J. Korean L. 51, 71–73 (2007).
- 6.
Lee, Litigation Explosion, supra note 2, at 12.
- 7.
James Fleming, Jr., et al., CIVIL PROCEDURE § 1.21 (4th ed. 1992).
- 8.
Si Yoon Lee, NEW CIVIL PROCEDURE 600 (Pak Young Sa, 2009); Ki Taek Lee, Burden of Litigation Costs, at A COMMENTARY TO NEW CIVIL PROCEDURAL LAW(II) 61 (Sang Won Kim et al. eds. 2004); Dong Yoon Chung and Byung-Hyun Yoo, CIVIL PROCEDURE 1015 (Beop Mun Sa, 2005).
- 9.
Supreme Court Rules No. 2116, amended on November 28, 2007, effective on January 1, 2008.
- 10.
Judgment rendered by the Korean Supreme Court on June 30, 1995, Case No. 95Da12927; Gyooho Lee, In Search of the Optimal Tort Litigation System: Reflections on Korea’s Civil Procedure Through Inquiry into American Jurisprudence 179 [J.S.D. dissertation (Washington University School of Law)(1998)].
- 11.
See, e.g., Si Yoon Lee, supra note 8, at 602; Dong Yoon Chung and Byung-Hyun Yoo, CIVIL PROCEDURE 1026 (Beop Mun Sa, 2009); Moon Hyuk Ho, CIVIL PROCEDURE 574 (Beop Mun Sa, 2009).
- 12.
In England, the practice is that the loser often pays only part of the winner’s costs.
- 13.
The official English version of Civil Procedure Act in Korea, available at http://elaw.klri.re.kr/ which has been run by the Korea Legislation Research Institute, prescribes as follows:
A fee paid or to be paid by a party to a lawyer who performs a lawsuit on behalf of the party shall be admitted as the costs of lawsuit within the limit of the amounts as prescribed by the Supreme Court Regulations.
However, the term, “Supreme Court Rules,” is preferable as compared to the word, “Supreme Court Regulations,” because the rules have been enacted and amended by the Supreme Court rather than the Executive branch. Hence, my translation of Article 109(1) of Korean Civil Procedure Act is a little different from that of its official English version.
- 14.
Supreme Court Rules No. 2116, amended on November 28, 2007, effective on January 1, 2008.
- 15.
Jae Won Kim, The Ideal and the Reality of the Korean Legal Profession, 2 Asian-Pacific L. & Pol’y J. 45 (2001).
- 16.
http://www.oseo.com/people/qna/view3.asp?bd_cd=CM12026;sp=126;cp=126;no=529326;s_chk=N (last visit on March 15, 2011).
- 17.
Id.
- 18.
http://www.lawmarket.co.kr/auction/auction_guide.asp (last visit on March 10, 2011).
- 19.
Id.
- 20.
See http://www.das.co.kr/MainServ?cmd=homepage (last visit on March 4, 2011).
- 21.
http://www.lig.co.kr/product/p_03/p_0303/p_0303_01.shtml (last visit on March 1, 2011).
- 22.
Articles 128 and 129 of KCPA.
- 23.
Article 128(1) of KCPA.
- 24.
Article 24(2) of KCPA.
- 25.
Article 128(2) of KCPA.
- 26.
Article 128(3) of KCPA.
- 27.
Article 129(1) of KCPA.
- 28.
Article 129(1) of KCPA.
- 29.
Article 132(1) of KCPA.
- 30.
Office of the National Court Administration of the Supreme Court of Korea, Annual Judicial Report for Year 2008. http://www.scourt.go.kr/justicesta/JusticestaListAction.work?gubun=10 (last visit on March 8, 2011).
- 31.
Cf. HANKUK MINSASOSONGBEOP HAKHOI [Korea ASSOCIATION OF THE LAW OF CIVIL PROCEDURE], MINSASOSONGJEDO UI JEONGBIBANAN YEONGU [A STUDY ON THE REFORM OF THE LAWS ON CIVIL LITIGATION COSTS] 286–288 (2009); Byungseo Chon, Sosongbiyong Jedo ui Gaeseon e ganhan Yeongu [A Suggestion on the Improvement of Civil Litigation Costs], 14-1 MINSASOSONG [CIVIL PROCEDURE] 313–325 (2010).
- 32.
Chaewoong Lim, A Study on the Target of Avoidance in Korean Bankruptcy Law: When There is No Debtor’s Action, Journal of Korean Law, Vol. 7, No. 2, at 344 and n. 24 (2008) (Saying that “The appropriate in the concrete is an important word in legal practice in Korea, especially for the judges. Put it simply, it is the question who must win the case. New comers are taught to consider it when they make a decision. They are told to think of who must win apart from the superficial logic. If the appropriateness in the concrete is not agreed to the superficial logic, for example in the case that the plaintiff would win by the latter, but the defendant should win by the former, they are asked to give it a second thought and to seek a new logic. To understand the Korean judges’ behavior on the work, it is necessary to understand the role of the appropriateness in the concrete.”)
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Lee, G. (2012). Attorney Fee Arrangements Really Matter in Terms of Access to Justice in Korea. In: Reimann, M. (eds) Cost and Fee Allocation in Civil Procedure. Ius Gentium: Comparative Perspectives on Law and Justice, vol 11. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-2263-7_17
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