부당소송에 관한 연구

A Study on Meritless Litigation

All citizens shall have the right to be tried in conformity with the Act by judges qualified under the Constitution and the Act. But a lawsuit that raises allegations that have no legal or substantive basis is an wrongful use of civil proceedings. A person who uses an wrongful civil proceedings is liable for damages caused by a tort. Meritless cases impose real costs on the legal system, burden courts and inflict unnecessary expense on defendants. The prevailing wisdom is that eliminating meritless and frivolous claims as early in a civil proceeding as possible will focus scarce resources on the truly meritorious cases. There is two main causes of meritless litigation. The first cause is asymmetric information–plaintiffs in these cases do not have access to the information they need to evaluate the merits of their claims. The second cause is asymmetric cost–plaintiffs in these cases may suspect that their claims lack merit, but they file them anyway because the defendants costs to litigate far exceed their own. This article describes the appropriate tools to deal with information asymmetries and to address cost asymmetries. Pre-suit discovery, Rule 11 of the Federal Rules of Civil Procedure, heightened pleading and motion to dismiss are effective procedural tools. Furthermore it may be appropriate that the prevailing party to recover its attorneys fees and litigation costs from the losing party. Finally, a lawyer shall not bring a proceeding or assert an issue therein, if there is a basis for doing so that is meritless.