소비자 피해의 효과적인 구제를 위한 소비자단체소송 규정의 해석론과 입법론 = Interpretative and Legislative Approaches to Consumer Organization Litigation for Effective Redress of Consumer Harm

다국어 초록 (Multilingual Abstract)

This article analyzes the institutional design of consumer organization litigation under the Framework Act on Consumers and its related procedural rules, focusing on interpretative challenges and legislative implications. The study identifies structural inefficiencies in the Korean system, where courts review an organization’s qualification both at the stage of permission of action and during fact-finding, unlike the German and Japanese models that rely on pre-designated organizations. Although potential abuses of eligibility challenges can be mitigated through judicial case management and the principle of good faith, the dual-review structure generates unnecessary procedural redundancy. The article therefore proposes abolishing the permission of action system, adopting prior designation of qualified organizations, and supplementing safeguards with security-deposit orders to prevent frivolous claims.
The analysis further conceptualizes organizational standing in consumer actions as a special statutory right of action, given the heterogeneous nature of eligible entities in Korea—ranging from consumer organizations to industry associations. Neither inherent-right theories nor pure statutory-representation theories sufficiently explain this hybrid model; rather, the nature of the claimant and the type of claim should guide the doctrinal characterization.
The article clarifies that preventive injunctions are already permissible under current law, as Articles 73 and 74 encompass both threatened and ongoing infringements. It also critiques the res judicata rule in Article 75, which grants an atypically broad binding effect to losing judgments and risks undermining effective consumer protection. While co-party intervention rules attempt to correct these shortcomings, they depart from established principles of joint litigation.
Finally, the study argues that provisional measures should be available from the moment both the complaint and the permission of action application are filed, notwithstanding ambiguity in Article 76(2). For effective enforcement of prohibitory claims, provisional relief should not be constrained by procedural sequencing, and indirect coercive measures or a statutory claim for removal of unlawful results would further enhance remedial effectiveness.