#One. In February 2014, the disabled victims, known as the ‘Shinan-gun Salt Farm Slave Incident’, fled the island with the help of the media, activists for the disabled, and lawyers. They filed a claim for national compensation with the help of civic groups and lawyers for the forced labor they suffered in Sinan-gun for decades. However, the court rejected the claim for damages, and Sinan-gun claimed the costs of litigation from the victims. The court ordered the seven victims to pay 6.97 million won for attorneys’ fees paid by the Shinan County Office.
#2. Mr. A was transported to the hospital for poisoning by mixing the pesticide (insecticide) stored for vegetable cultivation with beverages, and saved his life, but was amputated. So, I checked the insurance products I had subscribed to and made a claim for insurance, but was rejected. Person A filed a claim for accident insurance once morest insurance company B, and went to the third trial, but lost. Insurer B demanded a lawyer’s fee from A, and the court ruled that A should pay 9.53 million won to Insurance B.
It has been argued that the provisions of the Civil Procedure Act, which stipulates that the plaintiff, who has initiated a public interest litigation, must bear the litigation costs of the other party (defendant), should be revised. This is because the ‘principle of litigation costs’ in the Civil Procedure Act, which requires the losing party to bear the costs of litigation, violates the ‘right to claim trial’, a fundamental right stipulated in the Constitution.
On the followingnoon of the 12th, the Korean Bar Association (lawyer Jong-yeop Lee, president of the association) held an online discussion on the topic of ‘Amendment to the Civil Procedure Act, etc. to Improve the Loss Cost System in Public Interest Litigation’. The forum was co-hosted by Park Min-min, a member of the Democratic Party of Korea, the Public Interest Human Rights Advocacy Center, a bar association for a democratic society, the Information and Human Rights Research Institute, the Progressive Network Center, the Information Disclosure Center for a Transparent Society, the Solidarity for Participation, and the Catholic Human Rights Commission.
Attorney Ho-Gyun Park (member of the TF for improvement of litigation costs such as public interest litigation of the Korean Bar Association), who gave the presentation on this day, explained the concept of ‘public interest litigation’ as “an unreasonable society through protection of the rights and interests of the weak and minorities, and relief of the rights of citizens infringed by state power.” Defining it as a litigation that helps to improve the system and curb the abuse of power,” he pointed out, “it does not necessarily have to be limited to litigation once morest the state.” According to him, representative public interest lawsuits include noise damage lawsuits at Gimpo Airport, constitutional complaints by women’s groups once morest military addition points, and lawsuits once morest the disabled once morest bus companies related to bus refusal.
Lawyer Park Ho-kyun explained, “Behind public interest litigation, however, there is the problem of burden of litigation costs, such as the salt farm slave case, and there are many cases of secondary damage following the fact. It has to be seen as a major factor in making it happen. The system for litigation costs, which uniformly imposes economic sanctions on loss even though it has a positive function in our society, in terms of providing an opportunity to improve bad habits or systems, by raising a problem regardless of victory or defeat, needs to be urgently improved. ” he said.
He said that ‘losers pay attention’ to prevent ‘male litigation’ (濫訴, litigation) infringes on ‘right to claim trial’, he said. Attorney Ho-Gyun Park said, “In certain areas of expertise (humidifier disinfectant case, medical litigation, etc.), there are cases where the party has a significant burden of proof, and it is 2 It is an unreasonable phenomenon that not only causes secondary economic damage, but also excessively restricts or infringes the right of the general public to request a trial.”
“However, since the litigation cost system is a policy domain, the National Assembly has a lot of discretion, and there are structural difficulties that make it difficult for the Constitutional Court to judge unconstitutionality,” said Attorney Park Ho-kyun. The only way to do this is to actively amend the law in the National Assembly through public debate,” he insisted.
Japan and the US to pay their own ‘lawyer’s fees’
Japan and the United States differ from Korea in that the plaintiff and the defendant each bear the ‘attorney’s fee’ among litigation costs.
In the past, Korea had the same system as Japan and the United States, but during the military government, it revised the Civil Procedure Act, focusing on the purpose of preventing accusations without sufficient verification by civic groups or the public. Lee Jong-gu, a law professor at Dankook University, who participated as a panelist, said, “If a consumer loses a lawsuit, no one can claim a small amount of compensation if he or she has to pay not only the litigation costs of the other party but also the lawyer’s fees paid by the other party within the limits set by the Supreme Court’s litigation expenses inclusion rule. I will not file a consumer lawsuit to get it,” he said.
Professor Lee Jong-koo said, “In the case of public interest litigation, the necessity of acknowledging the ‘losers pay attention’ exception is raised. The outcome of a lawsuit is always uncertain. After fearing that if a lawsuit cannot be filed due to cost, public interest litigation such as consumer and human rights litigation will become backward.” It is judged as a private attorney general suit. If the consumer loses, the company cannot claim the cost of litigation from the consumer.”
Professor Lee Jong-goo continued, “If you lose following filing a public interest lawsuit, you only need to reduce the ‘lawyer’s remuneration’. I think that it is desirable to reduce or exempt attorneys’ fees by making an exception to the current regulations. We have to make exceptions for the whole,” he said.
“Necessary to recover the disadvantage of the winning side” “Increasing tax burden”
However, officials from related agencies, such as the Ministry of Justice and the Court Administration, agreed to be cautious regarding the revision of the Civil Procedure Act.
Regarding the ‘feasibility of amending the Civil Procedure Act,’ Seung-eun Lee, an officer of the Judicial Support Office of the Court Administration Office, said, “As the Civil Procedure Act is a law that is generally applied to civil and administrative litigation cases, it will be highly controversial if it is pursued without a broad social consensus. I can see it,” he feared.
Secretary Lee Seung-eun said, “If the losing party in a public interest lawsuit has to bear the litigation costs, it is possible to recover the disadvantages in economic, mental, and time losses resulting from the lawsuit, even if it is recognized that the prevailing party had justifiable reasons for filing a lawsuit. This is because it deprives the public of the means.” He added, “I wonder if it is justified for the general corporation ‘Civil Procedure Act’ to stipulate a regulation that increases the burden on the people without a broad social consensus in that the expenses used by the prevailing state institutions are covered by the people’s taxes. Further discussion is needed,” he said.
Kim Chang-young, an administrative officer at the National Litigation Division at the Ministry of Justice, also said, “There is a positive aspect in that the civil procedure law, which is in a general legal position, can directly regulate the problem of burden of litigation costs related to the rights and obligations of citizens.” Revision of the litigation law requires a rather cautious approach, as the scope of public interest litigation for which litigation costs are reduced or exempted can be extended to cases where the other party is a corporation or private person, that is, to a full range of litigation.”
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