독일 민사소송법상 선도재판절차(Leitentscheidungsverfahren) 의 도입과한국에의 시사점

Recent large-scale consumer mass-harm incidents in Korea—such as the SKT USIM information leak, the unauthorized small-amount payment incident involving KT customers, and the Lotte Card personal credit information breach—have occurred in succession. These cases share common characteristics: victims are widely dispersed; identical or similar legal issues recur; and individualized litigation is structurally inefficient as a means of redress. In particular, the damages involved constitute so-called dispersed harms (Streuschäden), in which individual consumers must incur material, personal, and temporal costs far exceeding their potential recovery in order to exercise their rights through litigation. As a result, most victims conclude that the costs of litigation outweigh its benefits and accordingly make what is often described as a “rational relinquishment” of their rights. In response to such widespread collective harms, jurisdictions have explored mechanisms that depart from traditional individualized litigation and enable the consolidated resolution of common issues. Representative examples include U.S. class actions and multidistrict litigation (MDL), as well as the German Verbandsklage and Musterverfahren. In Korea, the Securities-Related Class Action Act has been in force since 2005 for securities-related matters, and since 2008 the Framework Act on Consumers has permitted consumer organizations to bring representative actions. Furthermore, in light of frequent personal-information breaches, the Personal Information Protection Act of 2011 grants standing to consumer organizations and others who are not direct victims to seek injunctions or cessation orders against personal-information infringements. Although these mechanisms provide for collective resolution of common harms, they are fundamentally limited in that individual victims cannot bring actions themselves and cannot seek direct monetary compensation. At the same time, as noted, individualized litigation is not a practically viable option for most consumers. Against this backdrop, Germany introduced in October 2024 the Leitentscheidungsverfahren (leading decision procedure) through an amendment to the Code of Civil Procedure (ZPO), enabling the Federal Court of Justice (BGH) to present leading legal standards to promote uniform interpretation of law and legal certainty. When numerous cases involving identical or similar legal issues are pending before different courts, this procedure allows the BGH to designate a leading case and articulate legal standards in the form of a decision rather than a judgment. Although these decisions do not have binding force, they aim to ensure legal certainty and predictability through their persuasive authority. Specifically: (1) the BGH designates a particular revision case as a leading case (§ 552b ZPO); (2) it presents leading legal standards through a decision (§ 565 ZPO); and (3) lower-court proceedings involving parallel issues may be suspended pending the leading decision, with safeguards for vulnerable parties (§ 148(4) ZPO). This article examines the content of the leading decision procedure and its first application—BGH, Judgment of 18 November 2024, VI ZR 10/24 (the “Facebook Scraping” case)—and considers the feasibility and implications of adopting a similar mechanism in Korea.