민법상 일반원칙인 ‘신의성실의 원칙이나 형평의 원칙’에 의한 변호사 보수의 감액 여부

In the subject case pertaining to whether an attorney’s claim for remuneration can be limited according to the principle of trust and good faith and the concept of equity general rules under the Civil Act where the fee agreed between the attorney and his/her client is unduly excessive, the Supreme Court held as follows: “When taking account of such various factors as ordinary attorney-client relationship; degree of effort on the part of the attorney; value of the subject-matter of lawsuit; specific gains that the client is to incur if winning the case; and other matters revealed during the pleading, if there exist extenuating circumstances to deem that an unduly excessive agreed-upon attorney fee in remuneration for an attorney’s handling of delegated duties contravenes the principle of trust and good faith or the concept of equity, then the attorney may only claim remuneration for a fee within a scope considered reasonable and appropriate. However, given that such limitation on the claim for remuneration grants an exemption to the freedom of contract doctrine, courts shall provide a clear rationale thereto.” Two Justices expressed their concurrence as to the above ruling: “[The] Civil Act merely stipulates that the exercise of rights and the performance of duties shall be in accordance with the principle of trust and good faith and that no abuse of rights shall be permitted (see Article 2(1)-(2)), and does not prescribe it as grounds to deem juristic acts null and void. Therefore, neither the principle of trust and good faith as prescribed under Article 2 of the Civil Act nor the concept of equity that is not even stipulated in the same Act can serve as the basis to declare an agreement concluded between the parties null and void.” In the en banc Decision, supra, the Court expounded as to why the aforementioned legal doctrine still holds true today: (a) As the fundamental principle of private law, the private autonomy doctrine and the freedom of contract doctrine forms the basis for regulating juristic legal relationships, but such doctrine is not unlimited and absolute. Private autonomy and freedom of contract may be restricted according to the good faith principle. (b) The underlying purpose of delegation or entrustment agreements is to protect the rights and interests of a counterparty based on trust between the contractual parties. As such, the principle of good faith and the concept of equity are even more stringently applied compared to sales agreements that mainly center on payment and consideration. (c) While allowing attorneys to monopolize the entire legal profession, the Attorney-at-Law emphasizes the high level of public nature and ethical standards demanded of the attorney’s profession by declaring that the mission of any attorney shall be to defend fundamental rights and realize social justice and that each attorney shall perform his/her duties independently and freely as a legal professional of public nature. The fact that an attorney’s performance of duties is starkly different from that of a merchant’s commercial activities seeking to generate profit ought to be taken into consideration when applying the good faith principle to a retainer agreement. (d) An attorney’s fee cannot be necessarily deemed as being decided at an appropriate level according to the law of supply and demand. Meanwhile, on the pretext of deriving a reasonable conclusion courts should as a matter of course refrain from rashly changing and revising on the basis of the good faith principle details of a contract concluded between two parties. However, in the course of establishing the legal doctrine of limitation on attorney fees, the Supreme Court has consistently underlined the need for prudence when applying such doctrine inasmuch as it falls under an exceptional case of placing constraints on the freedom of contract, and has expressed the need to provide a clear rationale in cases of limiting attorney fees. Through established precedents, the Supreme Court appears to have alleviated concerns that may arise from applying the good faith principle to attorney fees.