경쟁법 위반행위에 대한 집단소송제 연구
A Study on Representative Collective Action for Competition Law
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There is a problem of consumer-mass-harm situations where consumers or victims with very small amounts of damages lack the legal options and economic incentives to claim the damages suffered under the current legal system. Representative collective actions serve the purpose of aggregating common claims to share litigations costs, creating thus economies of scale for plaintiffs and for courts, providing victims of antitrust infringements wider access to the Justice. This article analyses the legal practice of the class actions of antitrust law in the United States and the recent approach of EU and the member states trying to introduce collective action system under their legal culture and tradition. If we introduce collective action system in the field of competition law, we could roughly choose between the U.S. style class action system and the EU type consumer representative action (Verbandsklage) system, such as those in France or the United Kingdom. From the view point of efficient private enforcement of competition law, the U.S. system prefer deterrence effect and the EU system seeks to ensure that anyone who has suffered harm from a violation of competition law can effectively exercise their right to claim full compensation. Therefore, we first of all should decide which object we put on a priority in competition policy. In my opinion, we should weigh more on deterrence effect of the private enforcement of the competition law. Then we should tune up to complement its weak points. We already have the Securities-Related Class Action Act since May 28, 2013. We should rename the act as General Class Action Act and may expand its scope allowing relief for collective losses arising from antitrust infringements such as cartels, price abuses of market-dominance or resale-price-maintenance. And the act must provide that the immediate appeal against the ruling of permission for lawsuit shall not take any effect to suspend the execution for avoiding delay. 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. So an opt-out system in which the number of claimants are larger and consequently each claimant bears less risk and can save more on the litigation costs is suggested, granting wide range of subjective extent of Res Judicata. And it is necessary for the plaintiffs of a class action to appoint lawyers as their attorney, for mitigating complexity of the action and reducing the court’s burden. Article 56 of the Monopoly Regulation and Fair Trade Act should apply mutatis mutandis to the defendant’s verification in collective actions. And because most collective action will be follow-on action, the court should be allowed to request the Fair Trade Commission to transmit the records of the case concerned under the act. At the same time, strong safeguards such as procedures for class admission, lawsuit permission and applying the Loser pays rule are necessary under the act in order to avoid unmeritorious litigation.
Abstract
There is a problem of consumer-mass-harm situations where consumers or victims with very small amounts of damages lack the legal options and economic incentives to claim the damages suffered under the current legal system. Representative collective actions serve the purpose of aggregating common claims to share litigations costs, creating thus economies of scale for plaintiffs and for courts, providing victims of antitrust infringements wider access to the Justice. This article analyses the legal practice of the class actions of antitrust law in the United States and the recent approach of EU and the member states trying to introduce collective action system under their legal culture and tradition. If we introduce collective action system in the field of competition law, we could roughly choose between the U.S. style class action system and the EU type consumer representative action (Verbandsklage) system, such as those in France or the United Kingdom. From the view point of efficient private enforcement of competition law, the U.S. system prefer deterrence effect and the EU system seeks to ensure that anyone who has suffered harm from a violation of competition law can effectively exercise their right to claim full compensation. Therefore, we first of all should decide which object we put on a priority in competition policy. In my opinion, we should weigh more on deterrence effect of the private enforcement of the competition law. Then we should tune up to complement its weak points. We already have the Securities-Related Class Action Act since May 28, 2013. We should rename the act as General Class Action Act and may expand its scope allowing relief for collective losses arising from antitrust infringements such as cartels, price abuses of market-dominance or resale-price-maintenance. And the act must provide that the immediate appeal against the ruling of permission for lawsuit shall not take any effect to suspend the execution for avoiding delay. 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. So an opt-out system in which the number of claimants are larger and consequently each claimant bears less risk and can save more on the litigation costs is suggested, granting wide range of subjective extent of Res Judicata. And it is necessary for the plaintiffs of a class action to appoint lawyers as their attorney, for mitigating complexity of the action and reducing the court’s burden. Article 56 of the Monopoly Regulation and Fair Trade Act should apply mutatis mutandis to the defendant’s verification in collective actions. And because most collective action will be follow-on action, the court should be allowed to request the Fair Trade Commission to transmit the records of the case concerned under the act. At the same time, strong safeguards such as procedures for class admission, lawsuit permission and applying the Loser pays rule are necessary under the act in order to avoid unmeritorious litigation.
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