Criminal success compensation needs to be discussed again to restore public rights

In 2015, the Supreme Court's plenary body declared the success fee agreement in criminal cases invalid on the grounds that it was contrary to Article 103 of the Civil Act, that is, good morals and other social order. The ruling at the time reflected social criticism of the courtesy of military officers, distrust of the judicial system, and the demands of the times to ensure integrity. However, as the Supreme Court itself stated, whether a legal act violates social order must be judged based on the circumstances of the time and social norms at the time the legal act was performed. The Republic of Korea today is in a clearly different legal and social environment than in 2015.

The institutional foundation, including the revision of the Public Official Ethics Act and the enactment of the Anti-Graft and Corruption Act, has already been established, and the monitoring and control of courtesy to all officials has ensured institutional effectiveness. The public's sensitivity to the law has improved dramatically, so the common belief that the judgment of judicial institutions will be distorted simply because there is a success reward is losing its persuasiveness. Rather, legally allowing success conservatism and regulating it transparently may be a way to increase trust in the judiciary.

The Supreme Court was concerned that criminal success compensation could distort judicial justice as a price for the outcome, but this is an interpretation that confuses the nature of the contract with public ethics. Justice is realized through the design and implementation of systems, and is not damaged by the act of receiving compensation itself. Success fees already exist informally in practice, and it is in line with the reality of the legal market to foster them and manage them under transparent contracts.

Recently, even within the Korean Bar Association and bar associations, the perception of the complete ban on criminal success compensation is a measure that is divorced from reality is spreading. The Korean Bar Association has actually been operating a standard contract based on the premise of criminal success compensation, and many lawyers are evaluating that it is possible to operate realistic cases through this. This should be read as a discussion of institutional improvement that goes beyond the restoration of freedom of contract and reflects the structural reality of legal services.

The lack of institutional consistency regarding criminal compensation is also felt in practical settings. The people do not want to entrust their fate to a public defender who receives an allowance of 300,000 won, like in a movie scene. Just as there is a line in the drama, “The money you should never save in life is lawyer’s fees,” there is a growing awareness that the right to defense cannot be fully exercised with only low allowances and limited assistance. This reveals the structural limitations of the public defense system and symbolically shows why a result-oriented private contract structure should function as an option. Ideals that ignore reality do not gain sympathy. We must implement justice in institutional reality.

Criminal success compensation is a device that effectively guarantees the ‘right to receive assistance from a lawyer’, a fundamental right under the Constitution. The high deposit is an absolute barrier to exercising the right to defense, and the success fee is the only realistic structure that can compensate for this.

Today's criminal justice stands on two axes: not only the integrity of judicial institutions but also the guarantee of the people's actual right to defense. The public interest role of lawyers must be performed fairly regardless of the outcome, but the logic that receiving reasonable compensation based on performance is against social order is no longer convincing.

Rather, the institutionalization of criminal success compensation is the only institutional device that provides real options to the public and allows lawyers to provide more responsible assistance. In order to escape from a structure where one has no choice but to choose low-quality defense due to the burden of down payment, the legal validity of success fee must now be reexamined from the beginning.

Park Dong-il, CEO of Daeryun Law Firm, said, "Criminal success compensation is not a contract to buy justice. It is an institutional means that citizens can choose to achieve justice. Under the conditions of fair contracts, transparent standards, and strict enforcement, criminal success compensation should not be a regression in judicial justice, but rather a restoration of public rights and the direction of practical judicial reform demanded by the times."

Reporter Jin Ga-young (lawissue) (news@lawissue.co.kr)

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