공익집단소송의 비교법적 연구

Abstract

Group litigation is divided into public and private group litigation. The latter is classified into class action and organization action. A representative example of public group litigation is parens patriae action in America. The plain meaning of “parens patriae” is “parent of the country”. This concept is originated from the English common law, under which the king undertook to protect and act for minors and incompetents. The crown’s parens authority grew out of the sweeping common-law theory of “royal prerogative” by virtue of which he or she had authority over almost everything. Under parens patriae doctrine, a state can sue on behalf of some or all of its citizens to prevent or repair harm to its quasi-sovereign interests. Sometimes, the parens patriae action appears to be similar to class action. However, the two procedures differ in that a state suing in a parens patriae capacity may not conform to class action certification requirements. The inapplicability of class action certification requirements, therefore, raises further questions of what procedures apply to parens patriae actions. In this regard, this Article explores issues related to, intervention by beneficiaries, opting out by beneficiaries, notice, and intervention by a state. Following the discussion on the procedural issues related to parens patriae suits, the Article deals with modern case law pursuant to tobacco, civil rights, environment, consumer protection, and anti-trust. In particular, anti-trust parens patriae suits are explained through federal laws such as Hart-Scott- Rodino Antitrust Improvement Act of 1976, in addition to its case law. Next, the Article provides an overview of English and Swedish public group litigation and, thereafter, the Article concludes that public group litigation for consumer protection need to be adopted into Korea.