[A study on practical blueprint of Korean class actions considered as the empirical study at the U.S. District Court.]
Although class action is a very special and exceptional procedure in the U.S. also, U.S. class action practices have a great di ...
[A study on practical blueprint of Korean class actions considered as the empirical study at the U.S. District Court.]
Although class action is a very special and exceptional procedure in the U.S. also, U.S. class action practices have a great difference from Korean legal practice which originates from German legal system. Korean has a striking contrast in the case of role of lawyers, discretionary power of judge and jury system.
In America, large class actions can be consolidated for pre-trial purposes through the device of multidistrict litigation (MDL), Korea have no general class actions except securities class action which is also restricted too much. For this reason, no case filed till now in the field of securities class action in Korea.
In America, typically, federal courts are thought to be more favorable for defendants, and state courts more favorable for plaintiffs. From this point of view, the Class Action Fairness Act of 2005 increases defendants' ability to remove state cases to federal court.
In contrast, Korea have no federal system, not so big law market, not so many wealthy lawyers to carry out class actions of his own. Lawyer's financial conditions are also weak enough to afraid to be branded "hostile to big company, which is their major source of profit". Nearly no lawyers endure risk to carry out such a risky proceedings like class actions on behalf of a group of individuals or business entities that have suffered a common injury or injuries. They usually prefer to be a few plaintiff's lawyer. They can receive service fees regardless of win or lose of the case.
In this context, Korean class action proponent's basis of the argument that U.S. class action system leads to "race to court" in Korea also is out of the point, I think.
In addition to the lawyer's financial weakness, Korean judges are very conservative to the multiparty litigation. They are very much afraid to interpret the text of law liberally. They think that judge has a high level of self-restraints in every case. Korean judges are fundamentally hard to imagine to certify something in a lawsuit.
In the Judge Weinstein's court, after the complaint is filed, scheduling and discoveries followed by the help of magistrate judge Gold. Upon the motion to certify the class, the defendants objected to whether the issues are appropriately handled, to whether the named plaintiffs are sufficiently representative of the class, and to their relationship with the law firm or firms handling the case. Judge weinstein also examined the ability of the law firm to prosecute the claim for the plaintiffs, and their resources for dealing with class actions.
Judge weinstein was an excellent expert in coordinating among multiple interests and negotiating with offenders. He sought eargerly substancial justice instead of supercial justice in class action also. His judicial philosophy was firmly based on the principle of democracy in judicial process also. He stressed on the principle that of the people, by the people, and for the people in judicial process also.
I have the same opinion that judge weinstein's democratic philosophy will be the keypoint to improve the future class action practices in Korea.