독일의 표본확인소송절차

Abstract

The model declaratory action was established in the Chapter 6 of the German Civil Procedure Act when the act was partially amended on July 12th, 2018. Articles 606 through 614, nine articles in total, governs this type of action. The revised German Civil Procedure Act entered into effect on November 1st, 2018. During the past two years, seven cases including the Volkswagen case and the Auto loan bank case has been resolved or pending at the court. To summarize, the model declaratory action in Germany allows plaintiffs in collective dispute to seek individual relief such as damages. In 2001, approximately 17,000 investors individually filed lawsuits regarding the so-called “Deutsche Telecom investment fund case”, and such massive lawsuit filings almost disabled usual operations of the courts. As a response to this, German lawmakers revised the Capital Investor – Model Procedure Act (Kapitalanleger - Musterfahrengesetz, abbreviated as “KapMug”) and established the model procedure only in the collective disputes regarding capital investment. The model procedure was entered into the effect on November 1, 2005 and the effect was expired on the pre-determined expiration date, November 1, 2020. As effects of the model procedure under the Capital Investor – Model Procedure Act expires, to redress collective disputes in all areas, German lawmakers established the model declaratory action in the Chapter 6 of the German Civil Procedure Act by significantly improving existing model procedure. This article closely evaluates German model declaratory action by reviewing its Concept(definition and legal characteristics, Chapter II), Requirements(Chapter III), Contents and publication of the complaint and litigation procedure(Chapter IV), Settlement while the model declaratory action is pending(Chapter V), and Judgments, Appeals, and Effects of the judgments(Chapter VI), based on the texts of the Articles 606 through 614 of the German Civil Procedure Act. German model declaratory action endows a group in German ‘litigation by a group’ with standing as a plaintiff. By doing so, the group may have a judgment regarding causes of the collective dispute from the High court having jurisdiction for all consumers. Then it is regarded that individual consumers who were registered on litigation registry of the model declaratory action can enforce the effects of the judgment. Based on the judgment of the model declaratory action, the registered consumer can claim damages in his or her individual litigation by proving amounts of damages occurred to him or her. German model declaratory action is distinguished from Class-action in the U.S. in that the German procedure is not an one-step dispute resolution that include litigation procedure and enforcement procedure. Rather, in German model declaratory action, a qualified group files a lawsuit and receives a judgment; and later an individual consumer files individual litigations, receives his or her own judgments, and enforce the individual judgment. This article evaluates establishment of German model declaratory action as a developing its own way of dispute resolution.