법무부의 ‘집단소송법 제정안’에 대한 검토 — 증권관련집단소송법과 달라진 부분을 중심으로 — (Review on the Proposed Bill on Class Action Act by the Ministry of Justice -Focusing on the Different Features from the Securities-related Class Action-)

서지정보

· 발행기관 : 한국민사소송법학회
· 수록지 정보 : 민사소송 / 26권 / 1호 / 387 ~ 439페이지
· 저자명 : 현낙희

초록

On 2020. 9. 28. the Korean Ministry of Justice announced its proposed bill for a new Class Action Act(“Proposed Bill”) which will repeal the Securities-related Class Action Act(“SRCA”) and serve as a general purpose collective proceeding. The Proposed Bill has brought its basic structure from the SRCA and added some new features.
The Proposed Bill has expanded it scope of application to “any claim seeking indemnification for damage” regardless of its cause of action, and thus various types of tort cases and even breach of contract cases can be included. This significant change while keeping the opt-out mechanism from the SRCA gives difficulties in ascertaining the class and identifying its members. Also, in order to realize substantial equality and to provide more devices for collecting evidence, the Proposed Bill has adopted a new system which enables wide range of production of materials(including trade secrets, if necessary for finding facts of the claim), and has even opened the door for its usage to persons who have not yet filed their complaints for class action. However the new system lacks safeguards such as protective order, sanctions, or criminal penalties. Furthermore, the Proposed Bill has incorporated the Citizen Participation Trial which is used in criminal proceedings in Korea, but it has a number of problems. The system itself is designed unfairly because only the plaintiff side class representative has the right to demand for the Citizen Participation Trial. Moreover, given the complexity of mass harm cases, and the judicial practice in Korean courts it could go against the purpose of the Proposed Bill, which is to effectively resolve collective damage.
In order for a general purpose class action system to be effective, various options should be provided so that the judge could exercise its discretion and choose the appropriate method in resolving each dispute. Also to make an evidence collecting system which would actually work, careful approach needs to be taken which would balance conflicting interests. Lastly, to ensure successful outcome of the Proposed Bill new feature which aims to serve another purpose such as Citizen Participation Trial should be removed.

영어초록

On 2020. 9. 28. the Korean Ministry of Justice announced its proposed bill for a new Class Action Act(“Proposed Bill”) which will repeal the Securities-related Class Action Act(“SRCA”) and serve as a general purpose collective proceeding. The Proposed Bill has brought its basic structure from the SRCA and added some new features.
The Proposed Bill has expanded it scope of application to “any claim seeking indemnification for damage” regardless of its cause of action, and thus various types of tort cases and even breach of contract cases can be included. This significant change while keeping the opt-out mechanism from the SRCA gives difficulties in ascertaining the class and identifying its members. Also, in order to realize substantial equality and to provide more devices for collecting evidence, the Proposed Bill has adopted a new system which enables wide range of production of materials(including trade secrets, if necessary for finding facts of the claim), and has even opened the door for its usage to persons who have not yet filed their complaints for class action. However the new system lacks safeguards such as protective order, sanctions, or criminal penalties. Furthermore, the Proposed Bill has incorporated the Citizen Participation Trial which is used in criminal proceedings in Korea, but it has a number of problems. The system itself is designed unfairly because only the plaintiff side class representative has the right to demand for the Citizen Participation Trial. Moreover, given the complexity of mass harm cases, and the judicial practice in Korean courts it could go against the purpose of the Proposed Bill, which is to effectively resolve collective damage.
In order for a general purpose class action system to be effective, various options should be provided so that the judge could exercise its discretion and choose the appropriate method in resolving each dispute. Also to make an evidence collecting system which would actually work, careful approach needs to be taken which would balance conflicting interests. Lastly, to ensure successful outcome of the Proposed Bill new feature which aims to serve another purpose such as Citizen Participation Trial should be removed.

참고자료

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