인터넷ㆍ모바일 공동소송의 현황과 대안 －제외신고 방식의 집단소송(opt-out class action) 도입 가능성을 중심으로－

Abstract

The reform of collective redress has garnered significant momentum and engendered widespread debate in Korea particularly since Internet-Mobile Joint Action is wide-spread. Several important statutory and reform initiatives(Consumer Fundamental Law etc.) have occurred during this period. While many legal and policy conundrums have arisen for discussion, perhaps the most important question hovering above the debates and consultations on the subject can be reduced to this: representative action(Verbandsklage) or class action and opt-in or opt-out class action?Some significant opt-out innovation has occurred in Europe--but only in three jurisdictions in which a legal will and a political determination have successfully married. These three opt-out regimes are completely disparate in their operational triggers, and in this author’s view, may conveniently be categorized into three types: the pure opt-out model(Portugal);the two-part representative opt-out model(Denmark); and the settlement-only opt-out model(Netherlands). In this Article, the author argues that, despite the panoply of representative procedural regimes and opt-out collective action in securities litigation area available in Korea, there is a demonstrable need in Korea for a further and complementary procedural device, viz, an opt-out collective action. And several of the “hard lessons” learned under the existing Europe regimes may prove to be of some interest and utility to law reformers and jurists in Korea. In a nutshell, “something more” is required to facilitate the litigation and testing of widespread grievances among Korean citizens, in circumstances where, presently, these grievances are being neither addressed nor compensated.