소비자분쟁해결을 위한 적정한 집단소송제도의 모색

미국 대표당사자소송의 절차적 특징과 변화의 관점에서

The modern class action rule of Federal Rules of Civil Procedure was created as functional aggregation device for achieving procedural efficiency and effective enforcement of substantive rights. The class action rule was designed to bind all class members to the judgment, turning it into a powerful preclusion device. By achieving economies of time, effort, and expense, and promoting uniformity of decision as to persons similarly situated, the class action rule allows to litigate small-value or negative value claims, including consumer disputes involving low-priced items, that the cost of liquidating the claim through litigation outweighs the value of the claim itself, thereby promoting access to justice for consumer disputes. For its nature of an aggregation device and a preclusion device, the introduction of the class action rule of the United States has been discussed, resulting several related legislative bills that have been pending at the National Assembly. Nonetheless, the class action rule is a controversial device for its distinctiveness, requiring a cautious review. One of the controversial mechanisms of class action rules can be found at attenuated individual consent and participation to produce final and binding outcomes for all class members, inevitably involving monitoring problems. This paper will analyze the procedural aspects of class action rules, focusing on the effectiveness and legitimacy, so as to explore the principles of aggregation litigation for promoting consumers’ access to justice.