Each time a client visits my office, he or she usually asks me before signing delegation letter, “Can I get my Attorney Fees Back from Defendant ?”
It is very common for people to ask such question because when they choose to commence a lawsuit, they are spending more money (e. g. retainer fees and court fees) to recover unpaid money.
The principle is simple. Pursuant to Korean Civil Procedures Act, losing party principally bears burden of winning party’s litigation costs.
The attorney fees, which is a part of litigation fees, shall also be bourne by losing party. The Korean Supreme Court sets statutory rate to calculate attorney fees according to the claiming amount.
However, there are exceptions to above principle, (1) costs arising from winning party’s unnecessary actions or (2) cost for an extension or defense of losing party’s rights shall be bourne by winning party (even if it totally wins the case). Moreover, (3) when the litigation is delayed due to winning party’s late response/ preparation of case, the court has discretion of charging winning party whole or a part of litigation cost. (4) In case of partial defeat, the court also has discretion to set the burden ratio of both parties.
In light of above, our answer to abve question, “Can I get my Attorney Fees Back from Defendant ?” shall be as: “Yes, however, the winning party can be reimbursed in whole or just in part, considering the progress of case, size of claiming amount, winning portion, and the discretion of the court.”.
[Korean Civil Procedures Act]
Article 98 (Principle of Bearing Costs of Lawsuit)
Costs of a lawsuit shall be borne by the losing party.
Article 99 (Exception to Principles)
A court may, depending on circumstances, charge the winning party with the whole or part of the costs arising from the acts unnecessary for an extension or defense of his/her rights, or of the costs arising from the acts necessary for an extension or defense of the other party’s rights.
Article 100 (Exception to Principles)
When a litigation was delayed due to the failure of either party to produce a means of attack or defense at an appropriate time, or to neglect an observance of the appointed date or period, or due to any other causes attributable to either party, the court may charge the winning party with the whole or part of the costs of lawsuit incurred due to such delay.
Article 101 (Case of Partial Defeat)
The costs of lawsuit to be borne by the parties in cases of a partial defeat shall be determined by the court: depending on circumstances, the court may charge either of the parties with the whole of the costs.
Article 109 (Attorney Fees and Costs of Lawsuit)
(1) A fee paid or to be paid by a party to an attorney-at-law who performs a lawsuit on behalf of the party shall be admitted as the costs of lawsuit within the limit of the amounts as prescribed by the Supreme Court Regulations.
(2) When calculating the costs of lawsuit under paragraph (1), even if more than one attorneys-at-law have performed the lawsuit on behalf of the party, it shall be deemed to be representation of one attorney-at-law.