증권집단소송의 분배절차와 분배잔여금처리의 고찰

In class action, each class member's damage claim is not assessed separately. The court assesses damage by aggregating the claims of all class members. After collecting the lump sum, the court distributes the funds in various ways. By direct court authority or at the lead plaintiff's request, a distributor will be appointed, and the distributor is to distribute any damage award under the supervision of the court. A class member, within the designated period, should report his or her claim to the distributor. Any class member who is not able to report the claim to the distributor within the designated time period can not take part in distribution of claim damages. Because class members may fail to submit a claim, or the class representative may be unable to identify and locate each possible claimant, settlement funds and damages often cannot be distributed to each injured member of a plaintiff class. The cy pres doctrine permits the ‘next best’ use of settlement or damage funds that cannot feasibly be distributed to individual plaintiffs. The cy pres doctrine, borrowed from the law of trusts, allows the funds to be used for a similar purpose when it is impossible or impractical to distribute the funds in a traditional manner. There are four cy pres distribution mechanisms. The court can distribute the entire sum by dividing it among all the claimants, by reducing the price of the defendant's goods or services until the sum is “disgorged”(price reduction), by allowing the funds to escheat to the state(escheat), or by placing residual funds in the hands of trustees (the consumer trust fund). Each of the mechanisms contributes, in varying degrees, to the fundamental goals of disgorgement of unlawful profits, deterrence of future unlawful activity by the defendant, and compensation of class members. Nonetheless, some criticize cy pres distribution mechanisms in that they may result in windfall to third parties or to the class claimants. The alternative to cy pres distribution is to return undistributed funds to the defendant after all possible claims have been paid. Korean Securities Class Actions Bill states that residual funds should be return to the defendant. I think that reversion of undistributed funds to the defendant is not appropriate in that this mechanism can not help the fundamental goals of disgorgement of unlawful profits, deterrence of future unlawful activity by the defendant, Therefore, I think that residual funds must be escheated to the government.