소액다수 소비자피해에 대한 집단소송제 연구

Abstract

Individual consumer who suffered respectively little loss in a mass tort case doesn’t have sufficient incentive to sue the offender enterpriser because the victim could get only little award if she or he would win the litigation after consuming lots of time and money. Currently the Framework Act on Consumers (Act No. 15015, Oct. 31, 2017) allows with respect to any cases of causing damage to many consumers in the same or similar type, the State, a local government, the Korea Consumer Agency, a consumer organization, customers, or enterprisers make a request or file an application to the Consumer Dispute Settlement Commission to mediate the disputes collectively (Article 68-2). And if an enterpriser infringes directly on the rights and interests of consumers relating to their lives, bodies, or property in violation of Article 20 of the Framework Act on Consumers and the infringement continues, a certain organizations may file an action with a court to prohibit and suspend the infringement of consumers’ rights and interests (Verbandsklage). But this litigation supplies winning parties not a compensatory relief and it can be used only for an injunctive relief. For consumers of financial products, the Securities-Related Class Action Act (Act No. 11845, May 28, 2013) prescribes special cases of the Civil Procedure Act allowing relief for collective losses arising only in the course of trading securities. However there have been few securities-related class action cases since its introduction. It takes too long time to proceed the litigation procedure because an immediate complaint may be raised against the permission ruling and it then have the effect to suspend the execution of permission ruling. The collective disputes mediation can be used for consumers’ compensation. However it doesn’t allow each consumer’s application and a final and conclusive judgment rendered to the applicant shall not be binding on the other person who also suffered loss from the same infringement. Some commentators insist that the scope of Verbandsklages under the Framework Act on Consumers should be expanded to include a compensatory relief. Another scholars propose that we should choose two-tier quasi-class action modeling Japanese style. And others argue that american style class action should be introduced. In my opinion, we could add consumer loss resulting from breaches of consumer protection laws into causes of action and facilitate the use of class actions with amending the Securities-related Class Action Act in order that no immediate complaint have the effect to suspend the execution of permission ruling. Furthermore, we should consider allowing the third parties’ funding for class actions, mitigating plaintiffs’ burden of proof, awarding punitive damages, restrictive discoveries, allowing more discretion of court about calculation of amount of damages. I expect that the collective disputes mediation scheme would reach more frequently than before because the opponent party would willingly accept the contents of the dispute settlement, considering that consumers might resort to the consumer class action if she or he refuses the dispute settlement.