공익소송의 입법론적 고찰 (A legislative Study on Public Interest Litigation)

서지정보

· 발행기관 : 원광대학교 법학연구소
· 수록지 정보 : 원광법학 / 29권 / 3호 / 27 ~ 50페이지
· 저자명 : 김학기

초록

Regarding public interest litigation, despite the variety and abundance of diffused interest which is small damages of many and unspecified persons not properly protected by law, there are cases when damage per victim is not large and the degree of reward is negligible compared to the time and effort spent for litigation performance and therefore the lawsuit is abandoned; social justice will be realized if the case above is protected by filing a lawsuit based on the tentatively named public interest litigation law. Public interest litigation is a meeting place where public service activities to remedy these diffused interest meet law, and it can serve to fill empty space in our legal system. Although it seems vague and distant now, the enactment of public interest litigation and such lawsuit to remedy small harm of the socially disadvantaged will give great power to social system reform and protection of rights of altered consciousness.
There are points to consider if the public interest litigation is enacted in the future: there is a need to relieve the plaintiff eligible by limiting the number of victims that file public interest litigation to 10 to 30 persons and to recognize the plaintiffs eligible to sue for a certain group that can file consumer’s representative party litigation. Yet, there also exists the need to limit the amount of damage to more than 5 million and less than 10 million won per capita, although it is not necessary to limit the defendant companies or individuals.
The matter of a lawsuit of public interest litigation should recognize the prohibition of the act of infringement and claim for damages, and public interest litigation, which is different from general litigation, requires expanded role of the court and judicial activism where Offizialprinzip is considerably included should be applied. Because the damage of every victim cannot be proven specifically, several parties deemed as standard, the act of operator, and a causal relationship should first be logically proven; reasonable ways including statistical methods needs to be introduced for the calculation of the total damage and strengthening evidence disclosure to correct evidence omnipresence is needed. For burden of proof, mitigating or switching the burden of proof and the execution of distribution manager under the supervision of the court is necessary. The effect of excluding further litigation should be carried out with the opt-out method; however, there is a possibility that other victim might not be able to recover from damage in the future if the same victim is influenced by the effect of excluding further litigation, especially if the suit is lost due to legal practitioners performing the lawsuit incorrectly. Therefore, it is necessary to stipulate that the effect of excluding further litigation applies to the third party only when the public interest litigation is won. Moreover, planning of public interest litigation and securing management funding from sources such as government support or contribution of public interest group is required; and to expand the participation of lawyers and other experts in public interest litigation, mandatory training for attorneys and other institutional support is needed.

영어초록

Regarding public interest litigation, despite the variety and abundance of diffused interest which is small damages of many and unspecified persons not properly protected by law, there are cases when damage per victim is not large and the degree of reward is negligible compared to the time and effort spent for litigation performance and therefore the lawsuit is abandoned; social justice will be realized if the case above is protected by filing a lawsuit based on the tentatively named public interest litigation law. Public interest litigation is a meeting place where public service activities to remedy these diffused interest meet law, and it can serve to fill empty space in our legal system. Although it seems vague and distant now, the enactment of public interest litigation and such lawsuit to remedy small harm of the socially disadvantaged will give great power to social system reform and protection of rights of altered consciousness.
There are points to consider if the public interest litigation is enacted in the future: there is a need to relieve the plaintiff eligible by limiting the number of victims that file public interest litigation to 10 to 30 persons and to recognize the plaintiffs eligible to sue for a certain group that can file consumer’s representative party litigation. Yet, there also exists the need to limit the amount of damage to more than 5 million and less than 10 million won per capita, although it is not necessary to limit the defendant companies or individuals.
The matter of a lawsuit of public interest litigation should recognize the prohibition of the act of infringement and claim for damages, and public interest litigation, which is different from general litigation, requires expanded role of the court and judicial activism where Offizialprinzip is considerably included should be applied. Because the damage of every victim cannot be proven specifically, several parties deemed as standard, the act of operator, and a causal relationship should first be logically proven; reasonable ways including statistical methods needs to be introduced for the calculation of the total damage and strengthening evidence disclosure to correct evidence omnipresence is needed. For burden of proof, mitigating or switching the burden of proof and the execution of distribution manager under the supervision of the court is necessary. The effect of excluding further litigation should be carried out with the opt-out method; however, there is a possibility that other victim might not be able to recover from damage in the future if the same victim is influenced by the effect of excluding further litigation, especially if the suit is lost due to legal practitioners performing the lawsuit incorrectly. Therefore, it is necessary to stipulate that the effect of excluding further litigation applies to the third party only when the public interest litigation is won. Moreover, planning of public interest litigation and securing management funding from sources such as government support or contribution of public interest group is required; and to expand the participation of lawyers and other experts in public interest litigation, mandatory training for attorneys and other institutional support is needed.

참고자료

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