Constitutional Court Unanimously Upholds Civil Law Provision Banning 'Success Fees'

Criminal Cases 'Prohibition of Success Fees' Based on Civil Act Article 103
Currently "No Violation of the Principle of Clarity"

The Constitutional Court has ruled that the Civil Code provision, which served as the basis for the Supreme Court en banc decision prohibiting contingency fees in criminal cases, does not violate the Constitution. In 2015, the Supreme Court en banc ruled that agreements on contingency fees in criminal cases are invalid on the grounds that they violate "good morals and other social order."

Chief Justice Yoo Nam-seok of the Constitutional Court and the constitutional justices are seated in the justices' seats of the Grand Bench at the Constitutional Court in Jongno-gu, Seoul, on the afternoon of the 26th of last month, where the constitutional complaint case ruling is held.
[Image source=Yonhap News]

On the 1st, the Constitutional Court announced a unanimous decision by all justices to uphold the constitutionality of Article 103 of the Civil Code in a constitutional complaint case filed by attorney A.

A represented some defendants in criminal cases, and the defendants were acquitted in court. Subsequently, A filed a lawsuit claiming that there was an obligation to pay the unpaid fees according to the fee payment agreement under the delegation contract.

However, the first trial court dismissed A's claim, ruling that the fee payment agreement A asserted constituted a contingency fee agreement in a criminal case and was therefore invalid under Article 103 of the Civil Code. Article 103 of the Civil Code stipulates that legal acts with contents violating good morals and other social order are null and void. A filed a constitutional complaint, arguing that the provision was excessively vague and violated the Constitution.

The Constitutional Court held that Article 103 of the Civil Code does not specifically regulate which legal acts fall under "good morals and other social order." However, it found that regulating legal acts in detail is difficult from a legislative technique perspective.

The Constitutional Court stated, "It is very difficult from a legislative technique standpoint to comprehensively regulate legal acts whose effects must be denied due to contents violating good morals and other social order," and added, "Since antisocial legal acts can be somewhat categorized to increase predictability, the judgment can be made from the objective perspective of a legal community that upholds the Constitution as the supreme norm, and thus it cannot be considered a violation of the principle of clarity."

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