[In-Depth Look] Litigation Costs That Deter Public Interest Lawsuits

Sanghyun Lee, Attorney at Duroo Corporation

Mr. A, who was detained at Cheongsong Correctional Institution as a "protective custodian," filed a wage claim lawsuit against the state. Mr. A worked for three years packaging vinyl gloves in the prison and often worked nights and holidays. The amount he received from the prison during that period was only about 20 million won. As his release approached, Mr. A intended to use the money to support his independence after release.

However, the lawsuit was difficult from the start. The court issued an "order to provide security for litigation costs" to Mr. A. If he lost the trial, he would have to pay the opposing party's attorney fees and other litigation costs, but even though the lawsuit had just begun, he was required to deposit that money in advance. This decision seemed to be made out of concern that Mr. A, who was still in prison at the time, might not pay the litigation costs if he lost the case. Mr. A paid 11 million won, which was almost his entire fortune. The lawsuit, which he started to lay the foundation for his independence after release, ironically ended up putting the seed money for his new life in society as collateral.

The current system, which makes one even consider giving up on a lawsuit demanding the wages for their labor due to litigation costs, clearly has problems. The fundamental issue lies in the "loser pays litigation costs" principle, which is applied without exception even in public interest lawsuits. Because losing means having to pay a large amount of litigation costs, public interest lawsuits are greatly discouraged. Public interest lawsuits play an important role in remedying harm to an unspecified large number of people and protecting the rights of socially vulnerable groups. Moreover, when public interest lawsuits succeed, the benefits extend not only to the parties involved but also to many socially disadvantaged and minority groups, and ultimately to the entire nation. Therefore, to promote human rights and expand the public interest in our society, it is urgently necessary to activate public interest litigation.

However, litigation costs have become shackles for public interest lawsuits. A clear example is the "Shinan Salt Farm Workers Case." This case, which involved a claim for state compensation for forcing disabled people to work like slaves in salt farms, carries significant social meaning. However, when the physically disabled victims lost the first trial of the state compensation claim, the court ordered the opposing party, Shinan County, to be paid 7 million won in litigation costs.

There is concern that victims may hesitate to pursue such lawsuits in the future. Public interest lawsuits often point out problems in laws or court rulings and call for progressive reforms, frequently advocating for new rights that were not previously recognized. Therefore, they often lose. Public interest lawsuits are often like "throwing eggs at a rock." If the issue of litigation costs is not resolved, even starting a lawsuit may become difficult.

Was Mr. A’s lawsuit, which was an unreasonable claim, quickly resolved? No. The lawsuit, which began in 2018, has continued for more than four years. Recently, the court said it would wait for the Constitutional Court’s ruling on the protective custody system before making a judgment. This case will continue for some time, and the court’s deliberations will also continue. In the process, societal discussions about the protective custody system will deepen. The egg that Mr. A threw at the rock has not broken but is posing a weighty question to our society. This is why more "eggs must be thrown at rocks," and why the issue of litigation costs in public interest lawsuits must be resolved.

This content was produced with the assistance of AI translation services.