법률금융 제공자로서의 제3자 펀딩업자의 절차법상 지위에 관한 연구

Abstract

The risks and costs associated with the litigation or arbitration process need to be managed by financing mechanisms. As such a mechanism, the third-party funding draws attention from potential plaintiffs or claimants. It is an arrangement by which a third-party funder agrees with a party to dispute resolution proceedings to provide the party with the costs of the proceedings in return for the financial compensation contingent upon the result of the proceedings. The practice for financing dispute resolution was banned or restricted in the past even in jurisdictions where it is legally and ethically acceptable now. The ban on the mechanism was historically derived from the doctrines of maintenance and champerty which emerged in England during the medieval period. As the doctrines have been weakened and abolished, the restrictions on the financial scheme have also been lifted to a large extent. Despite the relaxation, however, there is still controversy surrounding the third-party funding agreement. In particular, from the perspectives of procedural law, the issue concerns the role and status of third-party funders in litigation or arbitration proceedings. The mere fact that financial support is provided in exchange for a share of the proceeds of the proceedings does not lead to any crime or tort. However, if the third party funder is not forbidden to intermeddle in the proceedings, there is no denying that the financial arrangement might produce the evils against which the doctrines of maintenance and champerty were designed to guard. That is, the absence of any procedural restraint on the third-party funder’s intervention might increase the likelihood of undermining the integrity of the litigation process or corrupting public justice. In this regard, procedural law should impose restrictions or sanctions on the third-party funder’s intervention in the proceedings in order to protect the due administration of justice. As such restraint, the doctrine of abuse of process would be useful. Also, in ruling the allocation of legal costs for cases involving third-party funding, judges and arbitral tribunals should take into account the conduct of third-party funders.