독점규제법 위반행위 관련 집단소송의 소송허가 요건에 관한 연구

Abstract

Based on the trend of economic democratization, there is discussion surrounding draft amendments to the Monopoly Regulation and Fair Trade Act (the “MRFTA”), which would introduce the system of class actions for cases where there are numerous aggrieved individuals by violation of the MRFTA. In order to allow such individuals to effectively obtain relief through class actions, while at the same time preventing abusive lawsuits, it is necessary to adequately select cases appropriate for class actions at the initial certification stage. Therefore, it is important to enact and enforce legislation with adequate requirements for certification. In this regard, it is desirable to improve the current draft amendment for the certification requirements as follows. Article 57(4)(viii) of the draft amendment regarding the qualifications of the representative in a class action provides that “the person that will obtain the greatest economic gain through the class action” may be a good candidate to represent the class action. This language should be deleted as it is not appropriate for antitrust class actions. Additionally, Article 57(4)(ix) of the draft amendment provides that a person who served as a class counsel in three or more class actions during the most recent three years cannot serve as a class counsel, in principle. This restriction should also be struck from the draft amendment as it may systematically restrict the availability of competent and specialized legal counsel in class actions. Finally, it seems the better approach to initially limit the applicable areas of the class actions, and thereafter, discuss expanding the scope based on accumulated experience with the new system. I suggest that the antitrust class actions start with cases involving collusions under Article 19(1) of the MRFTA, prohibited activities of enterprisers associations under Article 26(1) of the MRFTA and minimum resale price maintenances under Article 29 of the MRFTA in light of the relative ease of these cases in satisfying the certification requirements and producing proof of the violation in the trial. I expect that there will be much discussion and debate regarding the predominance and the superiority element for certification of antitrust class actions. Particularly, while antitrust injury arising from violation of the MRFTA may be proved on a class-wide basis through common evidences, questions will arise as to whether to certify class actions in cases where the damages are highly individualized. In such events, each case should be individually assessed on a case-by-case basis to determine whether the certification requirements are met.