EU의 집단적 피해구제 제도 개선을 위한 공동 프로젝트와 동아시아의 공통 플랫폼 구축

Abstract

East Asian societies, including Korea, are also very interested in collective redress. The Korean Civil Procedure Law Association held a seminar in May this year where Professor Stadler presented the background and contents of the draft of collective redress (hereafter called Draft) of ELI and UNIDROIT. In addition, relevant experts from China, Japan, and Taiwan were invited to examine the current status and prospects of collective redress in East Asian society. It was because it needed to lay the foundation for building a common platform in East Asia. However, I found it difficult to come to the fruition in the near future because of heterogeneity of each society. Korea might be one of those countries in East Asia that has been proactive to introduce various solutions to collective disputes. In addition, a variety of methods have been adopted and utilized in various ways. First of all, although it is not a litigation-based system, opt-in collective dispute mediation system has been introduced into environmental cases since 1997 and similar opt-in collective dispute mediation system was introduced in consumer field in 2006, but both systems hardly came into practical use. Therefore it is difficult to treat them as a remedy for a case where there have been damages to the mass. Since the late 1990s, many collective consumer damages were incurred by corporations that lacked commercial ethics in Korea and it has been argued that US-based opt-out class actions should be introduced in a wider range of area including the consumer sector in spite of strenuous opposition from the conglomerates. In the end, the opt-out class action, which was only confined to the securities sector, has been implemented since 2005 on a compromise basis. From the beginning of adoption of class action the business emphasized the concern of vexatious suits and abuse of it, and the excessive safeguards were made and they made Korean class action system not preferred. As of 2019, 11 cases were filed where only 3 of them came to closure with indemnification was made. In fact, the class action was highly requested in the consumer sector, however, organization action(German style Verbandsklage) was first introduced in 2006which can seek cease-and-desist order against the defendant and obviously which is not widely used. On the other hand, Korean Code of Personal Information Protection adopted organization action mechanism which was the same with consumer area in 2011. The organization action has been hardly functioning as expected from the beginning. Until now only 7 cases have been filed in the consumer area. However, there are many skeptical views on the utility of this system. For example, if a business suspends the sale of a wrong insurance product on its own or because of sanctions by the administrative office, interests in the litigation should be extinguished and claimants have to withdraw their claim. The Dieselgate scandal was another event that urged Korean consumers to realize that they have no appropriate means to respond to cases that caused mass harm disaster. As of 2019, the only means for consumers to countermeasure was to file an organization action under the Korean Code of Consumer Protection seeking suspension and prohibition of misconduct of the business. However, no organization action was filed against Volkswagen because administrative office(such as Ministry of Land, Infrastructure and Transport) ordered the suspension of the sale of the vehicle in question with a recall order and the benefit that plaintiffs would gain from the lawsuit vanished accordingly. As a result, more than 5,000 Korean consumers who bought Volkswagen's diesel vehicles are working in small groups individually to file damage claims against Volkswagen as a joinder of parties action. On the other hand, the first judgment on these cases was rendered by the Seoul Central District Court on July 7. 2019. In this case the plaintiffs demanded to retract the purchase contract and get the full payment to be returned, but the court ruled that 10% of the car's price would be damage incurred to plaintiffs. Both parties are not satisfied with the ruling and have filed an appeal. Considering the situation above opt-out class action system should beadopted in consumer field. There was hardly any utility of opt-in collectivemediation system and organization action seeking to suspend or prohibit wrong-doings. There are currently 8 bills pending related to collective redress action in Korea's National Assembly. All of them propose expansion of opt-out class actions to all areas including consumer, environment, and fair trade. In the end, we have to widen opt-class action area and positively adopt third party litigation funding and cy-près method to boost class action.