독일 표본절차에 있어서 절차의 신속 및 간이화를 위한 방안

Abstract

「Act on Model Case Proceedings in Disputes under Capital Markets Law」, which is also known as 「Capital Markets Model Case Act」(KapMuG), is for the collective remedy of violation of rights in Germany. KapMuG was enacted in 2005, originally for a limited period of 5 years. After appraisal of the Act in 2009, the period was extended until October 2012. Then again in 2012, the expiry date was pushed back until October 31, 2020, with supplementation of new provisions and improvements. KapMuG covers the followings: (i) claims for compensation of damages due to false, misleading or omitted public capital markets information; (ii) claims for compensation of damages for the use of false or misleading public capital markets information or for failure to offer clarification about the false or misleading nature of public capital markets information; or (iii) claims to fulfill contracts, which are based on offer under the Securities Acquisition and Takeover Act. KapMuG serves the purpose of making the compensation process easier for the investors who have suffered losses. In model case proceedings, the Higher Regional Court rules uniformly on the likewise contended factual and legal matters of at least 10 separate damage claim cases, and such ruling exerts its binding force to all of those related cases. This institution aims to reduce the expense burden of investors and to relieve court of its work load. This article studies measures to promote rapid, simplified process in model case proceedings, which were furthermore the main substance of the act’s amendment. In second chapter of this article, procedures of model case proceeding are briefly examined in order to help the overall comprehension of the topic. Third chapter reviews different kinds of institutions which are implemented for the rapid, simplified proceedings–it analyses specifically the impossibility to appeal against court’s order (Section 3), simplification of referral process to the Higher Regional Court (Section 6), model case proceedings’ compulsoriness and possible delay regarding such, settlement in model case proceedings (Section 17), registration of a claim regarding the model case proceeding by reporting (Section 10⑵). Last chapter concludes the article considering the question - how to avoid problems of abusing and delaying which are noticeable in Germany, when introducing KapMuG to Korean legal system.