소비자집단분쟁조정제도에 관한 고찰-절차법 체계정합성의 관점에서 본 집단분쟁조정제도- = A study on consumer collective mediation in Framework Act on Consumers

다국어 초록 (Multilingual Abstract)

Contrary to the name of it, Korea collective dispute mediation in Framework Act on Consumers(소비자기본법) actually have no “mediation”and “no participation” of collective consumer. Legislator deprived of the right to request collective dispute mediation to the Mediation Commission in Korea Consumer Agency from private consumer, and gave the right to the entity of natiton, local autonomous entity, Korea Consumer Agency,a consumer organization and an enterpriser. Every private and collective damaged consumer has no right to request collective dispute mediation to the Mediation Commission in spite of the enterpriser has.
Framework Act on Consumers Article 68, Section 3 and 4 says that consumer can apply for collective dispute mediation's parties and can be appointed as a representative party by the Mediation Commission. In spite of Article 68, Section 3 and 4, private damaged consumer actually participates in the procedure as a testifier by the allowance of the Mediation Commission.
This is due to Article 68, Section 5, in which enterpriser have the final ability to accept for the contents of collective dispute mediation presented by the Mediation Commission. Private damaged consumer could be a participator or testifier at best. Representative consumer and all the other consumers are actually outsider in the collective consumer mediation procedure.
Enterpriser also regards this collective dispute mediation as an instruments of pressing enterprisers except the case of his own request. Enterpriser says that the Mediation Commission itself is fundamentally for consumer's.
Consumer collective dispute mediation has not the characteristics of mediation process between consumer and enterpriser. This mediation ends with judgement or ruling of the Mediation Commission, although it has not the power of court.
Consumer collective dispute mediation system borrows a lot of ideas from American Class Action. Public announcement of the commencement of the mediation procedures for a period and appointing representative party could be those examples of it. But this mediation system didn't admit the core characteristic “Opt-out” of American Class Action and turn a deaf ear to the great differences between litigation and mediation. This error makes collective dispute mediation into decorational quasi-judical and it also hurts Korea civil procedure's consistency.
I recommend that consumer collective dispute mediation need to be treated at the private/civil mediation organization or court mediation center.
Government oriented mediation organization has its own limit. This is mainly because the importance of mediation's neutrality. The right of request for consumer collective mediation have to back to the damaged consumers.
The other defect or weak points on consumer collective mediation could be cured only by admitting general Class Action systems.

참고문헌 (Reference)

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