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KCI등재 학술저널

상대방 소송비용 부담특약에 관한 연구

대리인이 의뢰인의 사건을 패소할 경우 의뢰인이 부담할 상대방의 변호사보수 등의 소송비용을 책임지기로 하는 약정이 허용되는지

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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.

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

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