초록 일부
The mordern times oriented well-being society is the era of the consumer sovereignty. Therefore, cosumer protection policy becomes an issue on the worldwide legal agenda. Although consumer protection ...
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초록 전체
The mordern times oriented well-being society is the era of the consumer sovereignty. Therefore, cosumer protection policy becomes an issue on the worldwide legal agenda. Although consumer protection policy in Korea has improved with the establishment and the amendment of the consumer protection law and the related laws, it is not satisfactory for the consumers guaranteed under the Constitutional Right mentioned for human right to pursue the happiness(Art. 10) to their damage relief due to the imperfection of the related institutions. Especially, many victims with small sum damage, which would be the typical characteristics of consumer damage, could not be relieved easily because of the present complicated procedures. Bring a lawsuit by individual is in fact difficult due to the fact that damages to the group is tremendously high while the loss to individual is for only a minimal amount. Not having standing or standing to sue makes it practically impossible to avoid dismissal without prejudice. Therefore, adversary system is not adequate enough to solve such problem.
For the reason, each country has and will have their own the collective litigation system such as Class Action or Group Action (Verbandsklage) to deal with new types of ligation. Among them, the Class Action of the United States of America and the Verbandsklage of German that are becoming an issue and the renowned settlement of the collective litigation system. We also drafted Class and Group Action, it is called 'Jipdansosong' in Korea enacted by the Ministry of Justice in December of 1996, which was basically the combination of Class Action in the United States of America and Verbandsklage in German. However, it is not still in operation. The collective litigation system is considered from many points of a view; in the position of a plaintiff, the collective litigation system is the useful means of judicial relief for many victims with the small sum damage. In the position of court, the collective litigation system can prevent lots of duplicate litigations and can promote the judicial efficiency through the unifiable decision.
There are quite differences between the two systems. The Verbandsklage of German gives the right to litigate only to the qualified organizations while the Class Action of the United Nations of America gives the right to litigate to a private person in principle and doesn't limit it to a specific person. Moreover, the Class Action is applied to the post-relief of damages yet happened but the Verbandesklage is used to hinder damages from the happening by preventing offenses. In the back of these differences, there are differences of legal culture between the two nations. German fundamentally has a collective legal culture or legal culture centering around the regislative body while the United States of America has an individualistic legal culture or legal culture centering around the judicature. therefore, in the Class Action, an individual takes the lead and the individualistic profit is an important object. But in the Verbandsklage, groups take the lead and the public profit is an important aim.
It is urgently requested to introduce the collective litigation system which could be the useful means to solve the economic and physical risk problems caused by collective conflicts and related consumers' damages with small sum. This becomes conflicted problems in the whole area of law including the public and private law. For the practical effect of Product Liability enforced from July 1. 2002, the collective litigation system for the relief of consumers' damage should be introduced.
In this thesis, I want to emphasize the necessity of the collective litigation system by reviewing the consumer complaint, judicial precedent, shaping of damage relief in our country from 1980 to November 2000 and comparative studies between Class Action and Verbandsklage as well as analysis of the system. In case of introduction of the collective litigation system, the way to handle the relinquishment of the dividend of victims by the payment from the defendant is prepared. I want to suggest that the collective litigation for the consumer Damage's relief would belong to the consumers' association for the practical purposes and for relief the problems such as the reversion of the balance not appealed by the victims.
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