상대방 소송비용 부담특약에 관한 연구

• 발행기관: 한국민사소송법학회
• 저자명: 이준범
• 간행물 정보: 『민사소송』제24권 제2호, 77~120쪽, 전체 44쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2020.06.30

영문 초록

This article studies whether an attorney may contract with a client to reimburse the client for the attorney fees and costs of the opponent if the client loses. I survey the relevant laws of the United States, Canada, and Australia on this issue. Canada and Australia, countries with fee shifting rules similar to Korea, generally allow this. Next, I argue that such a provision does not violate Korean Attorney-at-law Act nor the Korean legal ethics. There is no prior disciplinary proceeding result that I can find on this issue. Although the Attorney-at-law Act and the Korean legal ethics both require an attorney to maintain her dignity, the duty to maintain dignity was not interpreted to ban such a provision. Because a lawyer is in a better position to know whether a given case is likely to win, and because the lawyer can always not agree to a provision if the lawyer does not get enough information from the client about the case, the lawyer should be given the freedom to agree to such a provision if it is need to get a case to go forward. If it is not feasible to allow such a provision generally, then, considering that Securities-related Class Action Act Provision 11 was enacted to have an institutional investor monitor the lawyer for the class, and considering that an institutional investor would not agree to be a lead plaintiff because of the risk of the fee being shifted if the plaintiff loses, an institutional investor should be allowed to hedge such a risk by allocating at least some of the risk to the lawyer by contract.

목차

Ⅰ. 서론

Ⅱ. 비교법적 검토

Ⅲ. 상대방 소송비용 부담특약의 전면적 허용

Ⅳ. 전면적으로 허용하지 않기로 할 경우 ? 증권관련 집단소송법 제11조와 상대방 소송비용 부담특약

Ⅴ. 결론

키워드

변호사법 변호사 윤리 변호사보수 소송비용 증권관련 집단소송법 Attorney-at-law Act legal ethics attorney’s fees legal fees Securitiesrelated Class Action Act