다수당사자소송의 발전과 전망 －이른바 공익소송을 중심으로－

Abstract

The current Civil Procedures Code, as a 1itigation system of multiple parties,regulates ordinary co-litigation, indispensable co-litigation, the selective concerned party system, preliminary selective co-litigation, intervention as independent party, intervention as co-litigation, supplementary intervention,and supplementary intervention as co-litigation. However, the code does not stipulate a special provision regarding public interest litigation within the multiparty litigation system. Special laws, the Securities-Related Class Action Act and the Framework Act on Consumers, regulate the representative party litigation and class action system for protecting minority shareholders and consumers, and the Legal Aid Act supports litigation aid for the economically weak. The function of public interest litigation can be said to be maximized in cases where despite small damages of many and unspecified persons have been produced by those in superior position such as government authorities or large corporations, the victims give up litigation because per each victim the damage is small and the amount of compensation compared to the time and effort required for bringing a lawsuit is slight. Also, public interest litigation, through its court process and outcome, can not only form public opinion by bringing to attention the use of state power or the tyranny of a large corporation, but may also seek concrete damage compensation for victims and prevent additional unfair or illegal business practices of the offending group. In order to strengthen this proper function of public interest litigation, first, improvement in the level of legal awareness of the people seeking a legal guarantee of remedy for private rights violations with respect to scattered small sum damages is required; second, the abilities of legal experts and civic groups for aiding many and unspecified victims of small sum damages need to be strengthened; third, systemic mechanisms must be provided so that public interest litigation can be resolved through general litigation procedures, a class action system can be guaranteed for all areas,and a punitive damages system established; and fourth, the judiciary also needs a change of perception in order to promote a forward-looking legal interpretation to protect the rights of the many and unspecified victims. In the past, public interest litigation has been brought by civic groups such as MINBYUN (Lawyers for a Democratic Society), Citizens’ Coalition for Economic Justice, and People’s Solidarity for Participatory Democracy on cases like the so-called cigarette lawsuit, the Agent Orange damage lawsuit,the Mangweondong flood damage lawsuit, and the sex torture case. Now,systemic supplementation, such as budget support so that an organization specializing in public interest litigation can be formed and specialist lawyers hired to perform public interest litigations, needs to be implemented. The paradigm of national policy should also be changed so that the state can repair the irrational legal system in order to build a welfare state or a just society and promote legislative and judicial policy changes to allow positive administrative, legislative and judicial actions.