변호사 보수청구 제한의 근거로서 신의칙과 신인관계 - 법관의 합리적 재량 행사의 문제를 겸하여 -

The Korean Supreme Court issued an en banc decision (“the Decision at Issue”) affirming limitation on the excessive attorney’s fee based on the principle of the good faith (Supreme Court [S. Ct.], 2016Da35833, May 17, 2018(S. Kor.)). The Decision at Issue has significant implications with regard to binding force of the contract, principle of good faith (Treu and Glauben), fiduciary relationship and the judges’ discretion, which are the main issues of this article. This article dealt with the Decision at Issue with a critical eye and the conclusion can be summarized as follows: Firstly, there are controversies concerning the ground of binding force of the contract. The promise theory suggested by Charles Fried emphasizes the autonomy of the contract parties, whereas the reliance theory suggested by Lon L. Fuller and Patrick S. Atiyah emphasizes detrimental reliance and the paternalistic approach for securing substantive fairness. This article maintained that the promise theory can be more relevant in the interpretation of the Korean Civil Code. This means that the court should show deference to the autonomy of the contract parties as much as possible and can intervene in the contract in very exceptional situations: if the legal grounds for intervention are stipulated or the promise theory approach can bring about significant substantive unfairness. Secondly, the principle of good faith can apply to the interpretation and the termination of the contract as well as stretching contractual obligations. The issue is whether principle of the good faith can invalidate the contract as the Decision at Issue proposed. This article offered the rebuttal to the argument that the principle of the good faith can invalidate the contract. Given harmful effects that can be brought about if the argument prevails and the strong binding force of the contract suggested by the Korean Civil Code, it can be submitted that the principle of the good faith cannot be a legal ground for invalidating the contract and limiting excessive attorney’s fee. Thirdly, the fiduciary relationship can provide a legal basis for the paternalistic approach in the contract instead and justify limiting excessive attorney’s fee. This article proposed that the duty of care prescribed at the Korean Civil Code §681 can be interpreted as including the fiduciary duty. In case the fiduciary relationship which creates the fiduciary duty is formed, the court can intervene in the contract for protecting the principal (entrustor) exposed to special vulnerability. Likewise, the court can limit the excessive attorney’s fee based on the principle of the fiduciary relationship for protecting the client. Fourthly, this article proposed important points that should be considered for exercising judges’ discretion reasonably; Judges should distinguish the rule and the exception to the rule and should avoid escape to the general clause such as the principle of the good faith as much as possible. Judges should show deference to the autonomy of the contract and be scrupulous about limiting the amount of the fee fixed by the contract. In addition, the Supreme Court is advised to deliver the decision in a more concrete way by elucidating what factors should be considered in priority order among many factors that judges should bear in mind when exercising judges’ discretion.