소비자 집단분쟁해결 수단으로서의 집단중재의 도입 가능성 고찰

초록

In 2005 new paradigm of collective litigation was introduced to Korea. The securities class action system was introduced to the Korean legal system, furthermore, Opt-Out system was also accepted in new securities class action law. It was the paradigm shift law. However, new paradigm has not been rooted in Korean society because of extreme intervention of the court and highly expensive litigation cost. Enterprises worried about its abuse because its wide effects of Res Judicata could be expanded every class members even though they did not participate in the class action. In addition to it, legal attorney fee is also regulated and even should be permitted by the court. The class action is hardly used in Korea. On the other side, collective dispute resolutions such as collective mediation process and instrument litigation(Verbandsklage) in consumer protection law(CPL) and environmental collective dispute mediation process in environmental dispute mediation law are rarely used in Korea because of procedural complexity and inappropriateness for remedy. For example, Instrument Litigation in CPL does not include monetary claim and instrument just could claim forbearance or stopping unlawful acts performed by corporate. With the decision of the United States Supreme Court in Green Tree Fin. Corp. v. Bazzle, class-wide arbitration has been significantly expanded arbitral power to adjudicate class actions. However, in the Stolt-Nielsen S.A. et al.v. Animalfeeds International Corp. and AT&T Mobility LLC v. Vincent Concepcion cases the United States Supreme Court restricts the possibility of class-wide arbitration because original arbitration type is basically bilateral arbitration. And the US Supreme Court insist that class-wide arbitration is not allowed in the US without express consent. However, if the Opt-In method is linked with class-wide arbitration, it would be useful legal method for collective dispute resolutions. And arbitrator could decide whether bilateral arbitration or class-wide arbitration is apt for the pending dispute. Nowadays existing collective dispute resolutions are rarely used by consumers and we need new collective dispute resolution such as class-wide arbitration. And as we have opt-in method mediation system in CPL and environmental disputes mediation law, we could easily adopt class-wide arbitration with opt-in method.

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