금융소비자 보호를 위한 집단소송제도의 개선방안 - 최근 증권관련 집단소송법의 개정 논의를 중심으로 -
A Study on Improvement of Class Action Suit System for the Financial Consumer Protection in Korea
0
조회
0
다운로드
9
인용
0
참고문헌
키워드
초록
A class action is a lawsuit where a group of people in similar circumstances sues another party, usually consumers suing a large business. Although there are several criticisms to class actions(such as abusive class actions, adversely affected commerce, coupon settlement etc), class actions could offer a number of advantages because they aggregate a large number of individualized claims into one representational lawsuit. Class action originated in the United States and are still predominantly a U.S. phenomenon. But, the Korean government has been developing a series of legislation with the aim of facilitating the protection of consumers. Especially, in 2005, the Securities-related Class Action Act("SRCA", Act No. 7074) came into effect. This Act prescribe securities-related class actions in order to efficiently seek a relief for collective injuries caused in the course of trading securities. However, for the last 10 years after the enforcement of the SRCA, there have been only 7 class action suits in Korea. It means that there are many obstacles to make use of securities class actions properly. Therefore, several restrictions in SRCA should be abolished and/or amended in order to actually operate our securities class actions and protect the rights of minority investors. Herebelow, I suggest ways of improving class action system in Korea. First, the application and scope of the SRCA shall be extended farther. Article 3(Scope of Application) of the SRCA shall be extended to include all claims under Financial Investment Services and Capital Markets Act (“FISCMA”). Second, strict litigation requirements of SRCA shall be mitigated. As we reviewed in the article, Korean courts granted very little for the lack of requirements. Therefore Article 5(Appointment of Attorney) and Article 11(Requirements for Representative Party and Attorney) shall be mitigated and amended to ease access for financial consumers suffered from illegal practices. Third, substantial incentive, such as attorney fees, shall be provided for the lead plaintiff and/or lead counsel. It appears that proper contingency fee arrangements will might be helpful for injured and its attorney.
Abstract
A class action is a lawsuit where a group of people in similar circumstances sues another party, usually consumers suing a large business. Although there are several criticisms to class actions(such as abusive class actions, adversely affected commerce, coupon settlement etc), class actions could offer a number of advantages because they aggregate a large number of individualized claims into one representational lawsuit. Class action originated in the United States and are still predominantly a U.S. phenomenon. But, the Korean government has been developing a series of legislation with the aim of facilitating the protection of consumers. Especially, in 2005, the Securities-related Class Action Act("SRCA", Act No. 7074) came into effect. This Act prescribe securities-related class actions in order to efficiently seek a relief for collective injuries caused in the course of trading securities. However, for the last 10 years after the enforcement of the SRCA, there have been only 7 class action suits in Korea. It means that there are many obstacles to make use of securities class actions properly. Therefore, several restrictions in SRCA should be abolished and/or amended in order to actually operate our securities class actions and protect the rights of minority investors. Herebelow, I suggest ways of improving class action system in Korea. First, the application and scope of the SRCA shall be extended farther. Article 3(Scope of Application) of the SRCA shall be extended to include all claims under Financial Investment Services and Capital Markets Act (“FISCMA”). Second, strict litigation requirements of SRCA shall be mitigated. As we reviewed in the article, Korean courts granted very little for the lack of requirements. Therefore Article 5(Appointment of Attorney) and Article 11(Requirements for Representative Party and Attorney) shall be mitigated and amended to ease access for financial consumers suffered from illegal practices. Third, substantial incentive, such as attorney fees, shall be provided for the lead plaintiff and/or lead counsel. It appears that proper contingency fee arrangements will might be helpful for injured and its attorney.
참고문헌 (53)
- 權赫宰, "영국의 집단소송제도", 저스티스, 76, pp.145~166 (2003), 한국법학원
- 권혁재, "韓國에서의 集團訴訟制度의 도입과정 및 運營現況", 법학논고, (28), pp.415~440 (2008), 법학연구원
- 권혜진, "증권집단소송법의 시장반응에 관한 연구", 회계연구, 13(3), pp.79~108 (2008), 대한회계학회
- "금융감독개론", 금융감독원, ~ (2013)
- 金炳淵, "증권집단소송(Securities Class Action)의 도입필요성에 관한 연구", 비교사법, 10(1), pp.579~606 (2003), 한국비교사법학회
- 김상수, "집단소송제도 참고자료" (2006), 사법제도 개혁추진위원회 기획추진단
- 김성태, "證券關聯 集團訴訟法에 있어서 代表當事者에 대한 硏究 - 2009가합8829 증권관련집단소송 사건을 중심으로 -", 법학논총, 24, pp.195~213 (2010), 법학연구소
- 김주영, "증권관련 집단소송제의 활성화, 그 원인, 문제점 및 개선방안", 제2회 충정 법률포럼 자료집 (2007), 법무법인 충정
- 김한종, "증권집단소송제도의 활성화방안에 관한 연구", 홍익법학, 10(3), pp.389~420 (2009), 법학연구소
- 김홍균, "환경관련 다수당사자 분쟁과 집단소송", 환경법연구, 33(3), pp.116~157 (2011), 한국환경법학회
- 김홍기, "우리나라 증권관련집단소송의 현황과 개선과제", 경제법연구, 11(2), pp.59~88 (2012), 한국경제법학회
- 변환봉, "증권관련 집단소송법 개정안", 증권관련 집단소송법 개정을 위한 심포지엄 발표자료집 (2014), 서울지방변호사회
- 손영화, "증권집단소송제도의 개선방안에 관한 고찰", 상사판례연구, 24(4), pp.45~86 (2011), 한국상사판례학회
- 단소송제(대표당사자소송․단체소송)의 도입방안에 관한 연구, "오대성", 사법제도 개혁추진위원회, ~ (2005)
- 崔秉珪, "독일의 자본투자자 집단소송법안", 상사법연구, 24(1), pp.151~175 (2005), 한국상사법학회
- 최정식, "증권관련집단소송법의 개선방안에 관한 고찰", 저스티스, (102), pp.152~175 (2008), 한국법학원
- 최준선, "美國의 證券集團訴訟의 現況에 관한 小考", 기업법연구, 12, pp.441~456 (2003), 한국기업법학회
- 최승재, "증권관련 집단소송법 개정을 위한 대안 연구", 증권관련 집단소송법 개정을 위한 심포지엄 발표자료집 (2014), 서울지방변호사회
- American Council on Science and Health, "Silicone-Gel Breast Implants:Health and Regulatory Update 2000", ~ (2000)
- Anderson Mori, "A New Class Action System in Japan", ~ (2014)
- Axel Halfmeier, "The German Capital Markets Model Case Act (KapMuG): a European role model for increasing the efficiency of capital markets? Analysis and suggestions for reform", The European Journal of Finance (2012)
- Baker, "Dispute Resolution", ~ (2014)
- Bryant G. Garth, "Studying Civil Litigation Through the Class Action", Ind. L.J, 62(497) (1987)
- Christopher R. Leslie, "The Significance of Silence: Collective Action Problems and Class Action Settlements", Florida Law Review, (71) (2005)
- Eric P. Voigt, "A Company’s Voluntary Refund Program for Consumers Can Be a Fair and Efficient Alternative to Class Action", Rev. Litig, 31(617) (2012)
- "Securities Class Action Filing", Harvard Law School, ~ (2014)
- Hersh Shefrin, "Ethics, Fairness and Efficiency in Financial Markets", Financial Analyist Journal 21, 49(6) (1993), CFA Institute
- Jeffrey Michael Smith, "The Role of the Attorney in Protecting (and Impairing)Shareholder Interest: Incentives and Disincentives to Maximize Corporate Wealth", Duke L. J, 47(161) (1997)
- Marc. L. Steinberg, "Understanding Securities Law" (2000), Lexis Publishing
- Michael Greve, "Harm-Less Lawsuits? What’s Wrong with Consumer Class Actions" (2005), Publisher for the American Enterprise Institute
- Mondag, "Germany: Multi-Party Litigation In Germany", The KapMuG In Action, ~ (2014)
- Neil Andrews, "Multi-Party Proceedings in England : Representative and Group Actions", Duke Journal of Comparative & International Law, 11(249) (2001)
- Thomas Lee Hazen, "The Law of Securities Regulation" (2009), West
- Thomas E. Willging, "Empirical Study of Class Actions in Four Federal District Courts: Final Report to the Advisory Committee on Civil Rules" (1996), Federal Judicial Center
- Timothy D. Cohelan Cohelan, "San Diego, California, Cohelan on California Class Actions, at 1.04", The Advantages and Disadvantages of Class Actions, ~ (2001)
- UK Depart for Business Innovation and Skills, "Private Action in Competition Law", A consultation on option for reform - government response (2013)