집단소송법제에 대한 비판적 검토와 개선 방향

A Critical Review of the Group Litigation System and a Proposal of Improvement Direction

Today, the focus on the new system for effective resolution of collective conflicts is heightened in countries around the world. Some countries have taken the lead in implementing collective rights. However, no system is perfect. The key point in discussing effective collective dispute resolution should be considering not only the effectiveness of individual rights, but also the proper functioning of the judicial system. In this regard, the individual should remain active in realizing his/her rights and should be the subject of litigation, not the object, and at the same time the legal process should be kept in its simplest form as possible. As a legal system reflecting this point, the Musterfeststellungsklage (representative lawsuit system) should be considered positively, instead of the US-style class action. In this system, the common issues of fact or law are firstly identified and individuals can claim specific damages based on the identification of common issues of fact or law. The system should be established not as a special law but as a general system within the Civil Procedure Act, because class conflicts can occur in all areas, not in certain areas. However, due to the nature of the special procedures compared to the general civil procedures, additional explicit regulations are required for the characteristic contents, such as designation of a representative case, confirmation of a fact issue, participation of the parties concerned, stay of the proceedings, and effect on the participants and the subsequent courts. The Musterfeststellungsklage is also useful for mediation and settlement, since the court has first to decide on the common issues of fact or law. This makes it easier for the parties to settle disputes by agreement.