The Research of Collective Redress: With a Special Focus on The Comparison between KapMuG in Germany and Class Action in America
Date Issued
2015
Date
2015
Author(s)
Chang, Chien-Wei
Abstract
Collective Redress is a growing article of civil procedure in this world. The procedure will adjust with the time pass. The most interesting is that the country in Europe has its own characteristic on one side, but its also bound by the Directive from the Europe Union on the other side. Firstly, this thesis introduces the fundamental right requirement of Collective Redress, the process of the development in Europe, the summary classification and explanation. Then this thesis set up the criteria on the status of formal plaintiff, including the natural person, the non-profit organization, and the public organization. Basically, the way to accomplish the right is resort to the public enforcement in Europe. Germany is unexceptional. That is why the high importance of Verbandsklage in the past in Germany. Until 2005, Germany legislated the new model which called Kapitalanleger-Musterverfahrensgesetz(KapMuG). The special characteristic of KapMuG is stage procedure. And there are a lot of aspects showing the difference with the traditional civil procedure concept, including the decision of representative party(Musterklager) and the effect and the exception of the verdict(Musterentscheid). The amendment of 2012 includes expanding the scope of the KapMuG, adding the process of Anmeldung eines Anspruchs, and the variation of settlement. Then across the Atlantic to the America,“class action”is the blueprint when designing the Collective Redress in the world. This thesis introduces the principle of “aggregate litigation”at first. Then putting the emphasis on the Federal Rule of Civil Procedure 23, including the requirement and the category of class action. In the area of securities class action, there are the special procedure to choose the“leading plaintiff”and the“certification”. In America, the basis of justification of extending the effect of the verdict to the absent class member is“Notice”and the right to “Opt-out”.And the interesting theme is that the right to opt-out is changing in the area of laborer protection. This thesis puts emphasis on the comparison between the KapMuG in Germany and class action in America. For example, the purpose of the remedy, the formal and substantive requirement of the outset of the process, the subject matter of process, the procedure protection of class member, the choose of representative, the role of lawyer, the right of participation of the third person, the binding effect and the settlement. This thesis also introduces the“Gesetz zur Regelung von Verbands-, Muster-und Gruppenklage”from the Germany. Finally, back to Taiwan, it’s worth to compare §44-2 of civil procedure in Taiwan with the KapMuG and class action. By referring to the content of Germany and America, this thesis suggests that the representative could be chosen from the court and restricts the effect when the third person chooses opt-in to the procedure so that might have the opportunity to modify the inefficiency of the current §44-2 of civil procedure.
Subjects
public enforcement
private enforcement
group litigation
opt-in
opt-out
significant disputes
spreading disputes
selection of parties
publish and notice
additional selection of parties
Type
thesis
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