미국집단소송제의 최근 동향에 대한 고찰- 美國 2005년 集團訴訟 公正法을 중심으로 - = A Study on Recent Trends in American Class Actions:the Class Action Fairness Act of 2005

다국어 초록 (Multilingual Abstract)

On February 18, 2005, President Bush signed into law the Class Action Fairness Act of 2005 ("CAFA") after congressional efforts spanning over a decade. CAFA has two expressed legislative goals: (1) to expand federal diversity jurisdiction in class actions and (2) to ensure the fairness of class settlements to class members. The expansion of federal jurisdiction over class actions was sought to remedy the abusive and manipulative practice in state courts. Indeed, Congress has already experimented with this idea in the area of securities class actions -- namely the Private Securities Litigation Reform Act of 1995 and the Securities Litigation Uniform Standard Act of 1998.
This article analyzes the CAFA, one of the most important and significant legislative attempt to modify the class action practice in America. It will first review and analyze some of the important provisions in the CAFA. It will then discuss the impact of the CAFA on American class practice for the two years following the enactment of the CAFA. It will also review some of the appellate cases interpreting the CAFA. The author believes that the CAFA's fairer settlement provisions and congressional directives in that regard have induced American courts to scrutinize any proposed settlement terms invoking non-cash compensation and argues that it evidences a paradigm shift in American judges.
The CAFA is a relatively young legislation, and only time will tell if it will be able to have a long-term impact on class action practice, as desired by the Republican party and big businesses. As Korea has already authorized security related class actions since January of 2005, we need to continue to watch how this young legislation will unfold in the future. In the meantime, the CAFA's consumer class bill of rights provisions merit our further study, as they have already made the American courts protect consumer class members more vigorously.

참고문헌 (Reference)

1 윤창술, "증권집단소송의 남소방지제도: 미국의 경우를 중심으로" 17집 : 2005

2 한석훈, "증권집단소송의 남소방지대책" 한국기업법학회 (16) : 67-88, 2004

3 김성호, "증권집단소송에서의 대표원고에 관한 연구" 한국상사법학회 23 (23): 2004

4 정중근, "증권관련집단소송의 도입배경 및 내용" 54 (54): 2005

5 최진이, "소액주주보호와 증권관련집단소송제도" 18 (18): 2004

6 이규호, "공익집단소송의 비교법적 연구" 한국법제연구원 (28) : 127-173, 2005

7 Elizabeth J. Cabraser, "The Class Action Fairness Act: One Year Later" 2006

8 Lonny Sheinkopf Hoffman, "Retrospect: A First Year Review of the Class Action Fairness Act of 2005" 2006

9 Anthony Rollo, "Mapping the New Class Action Frontier: A Primer on the Class Action Fairness Act and Amended Federal Rule" 2005

10 Steven M. Puiszis, "Developing Trends with the Class Action Fairness Act of 2005" 2006

11 Amanda Coney, "Defining ″Primary Defendants″ in the Class Action Fairness Act of 2005" 2007

12 Julia B. Strickland, "2007 Overview of the Class Action Fairness Act" 2007