형사성공보수 무효 약정 판결에 대한 법경제학적 분석

초록

The purpose of this paper is to examine the validity of the Supreme Court’s judgement that contingent fee agreements for criminal case trials are void from the (law) economic point of view. The main conclusions are as follow. If the need for a contingent fee in the trial is generally recognized, it is difficult to logically justified to deny its necessity only for the criminal cases. This is because, from the perspective of information asymmetry, there are no meaningful differences among the structure of the criminal case’s, civil case’s and administrative case’s. Another argument to deny the contingent fee is that the result of criminal trial would be affected by a third factors other than the efforts of a lawyer. However, this is an argument for indicating the necessity of the contingent fee. This is because the contingent fee has a function as a mechanism for lawyers to pay the appropriate level of efforts. From the point of view of social welfare, the contract between the defense lawyers and the client in criminal cases has become rigid than before the judgement. On the other hand, whether this is reducing the demand of the former judges and prosecutors is uncertain. As the contingent fee ruled as void, defense lawyers’fees are temporarily decrease, but the social welfare effect is unclear, since it would be lost the mechanism that can bring a lawyers’ effort. The last validity of the Supreme Court’s decision, it would meet the common law feelings of criminal case’s contingent fees, which is also not free from criticism that populist legal judgment (pandering).

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