변호사 사건위임계약서상 불공정약관으로서의 성공보수 및 승소간주 약정

초록

On September 21, the Korean Supreme Court declared void the standardized term which prescribes a client(defendant) to pay the full contingent fee if she/he comes to terminate the proceeding by transaction with the other party without any notice to or permission from her/his attorney(plaintiff). However, the Court see to it that the attorney's claim for liquidated damages, as they were individually agreed by the plaintiff and the defendant, are enforceable, only after reduced nearly to the half according to art. 378 II of the Korean Civil Code. The comparative studies show there are great gaps concerning contingent fee agreements and quota litis(champerty) pacts among countries and periods. Roman, french, austrian, german, and english jurists have generally been passive, on the ground of bonnes moeurs or public policy, in admitting those agreements, while american lawyers prefer to taking use of them. By the way, a change seems as the society develops. For example, the German Federal Constitutional Court held that the legal prohibition of quota litis pacts infringed the freedom of enterprise, in that the law prohibits such agreements without exception. Returning to the recent Korean case above mentioned, the author raises a question of construction or problem-solving methodology, in that the Court allowed the plaintiff to claim the liquidated damages on one hand, denying all the validness of contingent fee agreement and other standardized terms in conflict with the public policy expressed in the ensemble of mandatory statutes on the other hand. Considering that the principle of individual agreement's priority be placed among interpretation control schemes, in the case considered, the full enforceability of the liquidated damages clause, only because of its having been individually agreed, could not be supported; in the author's opinion, the quantum meruit or quasi-negotium gestum might be alternative.

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