The Decision of the Korean Supreme Court on the Contingent Fee Agreement in Criminal Cases: General Clauses, Judicial Activism, and Prospective Overruling

Abstract

On July 23, 2015, The Korean Supreme Court declared that a contingent fee agreement between a criminal defendant and the defending attorney is invalid, as it is contrary to public policy. This decision also adopted the theory of pure prospective overruling. This decision is a clear manifestation of judicial activism in interpretation. Generally, courts take the following four factors into consideration when making activist decisions: (1) the text of statutes; (2) compatibility with the existing legal system; (3) the comparative advantage between the legislature and the judiciary; and (4) the magnitude of the impact upon legal relations. In this case, the impact of the decision upon contingent fee agreements entered into before the decision was a major concern to the justices of the Supreme Court. At that point, the Supreme Court used the tour de force of prospective overruling to make it clear that, while contingent fee agreements should not be allowed in the future, at the same time, the impact of that decision upon existing agreements of this type should be minimized. However, careful analysis shows that prospective overruling is simply not compatible with the function of courts.