집단소송제의 발전경과와 우리나라 집단소송법의 개선방향에 대한 검토

초록

Discussions on the introduction of the U.S.-style class actions have been held for 40 years in Korea, which is truly unprecedented. In the early days of discussions about the introduction of class actions, whether to choose between American-style class actions or German-style group action (VerbandsKlage) was an issue of concern. However, after the partial introduction of these systems, discussions have started to focus on finding a third alternative. The reason for the search for the third alternative lies in that German-style group litigation (VerbandsKlage) is hardly utilized and that American-style class actions may entail many perplexing side effects. However, it is not just the German group consumer action that is not well utilized; the American-style securities class actions is not much different in that respect. For this reason, an argument that American class actions are very likely to be misused is rapidly losing its persuasiveness. The third alternative, though modified by the word “innovative,” is a form of group litigation (VerbandsKlage) that combines a confirmation action and a test action (Musterfeststellungsklage). It is also characterized as a detour taken by the member states of the European Union trying to exclude unconditionally American class actions as a policy consideration. At the same time, this third alternative has a problem in that it also violates the principle that “a third party is precluded from carrying out litigation without consent of other parties,” which is the very reason why the American-style class actions were not adopted in the first place. All victims are excluded from the German Musterfeststellungsklage and only certain groups are allowed to sue. The third alternative also has limitation in that it turns a blind eye to the passivity of plaintiffs, which is a chronic problem of collective disputes, by having individual victims file a separate lawsuit as a secondary step following the initial litigation filed by an organization. Nevertheless, the third alternative is expected to be effective in that it creates the standards for dispute resolution in subsequent cases. These systematic competition taking place on the global front is also complicating the legislative process unfolding in Korea. This is mainly due to convolution of different systems, spanning the U.S., German, French, and Japanese, all in the Korean context. Legislative bills tabled to the Korea National Assembly indiscriminately blend the systems of various countries without consideration. In order to solve these difficulties, it is urgent to adopt the entire American class action system, plus install new civil jury system assigned to a specific role of carrying out deliberations of consolation money. The concerns of abuse of class actions could be easily controlled in the process of amending the law. It is urgent to create and implement an effective system first that matches the Korean legal reality.

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