민사소송에서의 변호사비용부담에 관한 비교법적 연구− 미국의 변호사비용에 대한 각자부담의 원칙과 편면적 패소자부담주의를 중심으로 −

This paper reviewed and analyzed comparatively the problems generated by the dilemma of attorney fee shifting rules: the protection of the right to access courts and the deterrence of nuisance litigations. The United States’ rule does not allow a prevailing litigant to recover an attorney fee from the losing party. However, In the United Kingdom, a “loser pays” rule applies. Also, in the Continent, the loser is liable for at least part of the prevailing party’s attorney fees. This paper examined the implications and justifications of basing a fee shifting rule, by exploring the discussions of the rationale of American rule and English rule. The attorney fee shifting rule has the positives and negatives. For instances, the loser pay rule fully compensates a wining party, awarding damages and costs and may deter frivolous litigation. However, it may deter some valid claims. Besides. courts may be overburdened, by encouraging optimistic party to litigate. Therefore, what is more important is that these rules’ negatives have to be implemented by alternatives. In this regard. this paper analyzed the Korean attorney fee shifting rules, which is similar to the Continent rule. The Korean Civil Procedure Act followed a “loser pays” rule, and the loser has to pay the amount fixed by the Korean Supreme Court’s Rule. The rule set the amount that the loser has to pay in proportion to the amount of the subject of litigation. The Korean Constitutional Court held that the Rule is to prevent litigants trying to vindicate their rights from avoiding using court system because of the risk of paying a successful defendant’s legal costs when they lose the case. However, generally speaking, the amount fixed by the Rule is too small. It may not encourage plaintiffs of modest financial means from bring low merit claims because the amount alone does not cover their attorney fees even though they win the case. On the other hand, since the Rule adopts no-fault rule, it may excessively discourage the pressing of plausible but not clearly winning claims. Therefore, this paper proposed that the Rule give courts broader discretion power in determining attorney fees that the loser has to pay to the winner.