집단적 소비자피해 구제제도로서 ‘독일 경쟁법상’ 이익환수청구권 제도에 관한 법적 고찰

Abstract

The Act Against Unfair Competition (UWG), Section 10(1) provide that whoever, while acting with intent, uses an illegal commercial practice pursuant to Section 3 or Section 7, thereby making a profit to the detriment of numerous purchasers, can be sued for surrender of such profit to the Federal budget by those entitled, pursuant to Section 8 subsection (3), numbers 2 to 4, to assert a cessation and desistance claim. In Germany, as shown above, Section 10(1) UWG contains a new remedy that has been hotly debated, both in Parliament and in the legal profession. It stipulates that the offender may be ordered to pay over to the Treasury any profits made as a result of an intentional violation of the Act when those profits were made at the expense of a multitude of customers. Such an order may be applied for by competition firms, qualified entities, Chambers of Industry and Trade, and Craft Chambers, though not by individual competitors or consumers. The new sanction is primarily aimed at cases of dispersed damages, i.e., violations affecting a multitude of customers but causing only minor individual damage. Individual customers affected by such violations generally refrain from enforcing their claims, not least because of the possibly high costs of taking legal action. This results in such violations often going unpunished. The listed associations and entities in VZBV can now apply for the profits of such violations to be skimmed and paid over to the Treasury, after deduction of certain expenses (Sec. 10(2) UWG). Whether this new sanction will prove to be effective remains to be seen. The Act (UWG), by and large, constitutes an acceptable and balanced framework for doing business and advertising in the German market. Whether it will actually “spur the German economy by transforming it into a flexible business location”seems at least doubtful. I believe, however, it is worth reviewing whether Korean legal system acceptable the profit confiscation right under the Act Against Unfair Competition (UWG) as a remedies of collective consumer damages.