消費者団体の差止請求権についての研究
著者 山里 盛文
発行年 2014‑03‑07
学位授与機関 明治学院大学
学位授与番号 32683甲第34号
URL http://hdl.handle.net/10723/1943
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Abstract
Chapter 1. Demand an injunction
In Chapter 1, the research examines consumer organization’s right to seek an injunction. Section 1 of this chapter shall clarify the meaning of “interest of all consumers” in the aspect of protecting legitimate right to injunction in the collective consumer litigation system. There are a number of intereprtations to this concept including: ① “interest of all consumers” that is an inherent interest of consumer organiration to “prevent consumer’s damage”, ② “interest of all consumers” that is the intermediate interest positioned between private interest and public interest, ③
“interest of all consumer” that is a defuse interest which is an intermediate interest located between public interest and private interest, unable to be divided or should not be divided, and it is the right and interest which do not belong to any specific legal subject (individual, association and government) but disseminated within the society,
④ “public interest oriented private interest” in which the subject of collective interest is
“an unspecified number of consumers” and this “unspecified number of consumers” is considered as an association, however, this “unspecified number of consumers”
association does not have legal capacity that needs a qualified consumer organization to exercise right to injunction on behalf of an “unspecified number of consumers”. However, these concepts still incur problem.
With regard to the interpretation No. ①, “interest of all consumers” is collective interest of consumers but not the interest of a qualified consumer organization. The next two interpretations of No. ② and No. ③ also incur problem relating to the content of intermediate interest and why it is not a public interest. The problem in No.
④ doctrine is why interest of “unspecified number of consumers” is not restored to individual customer.
With regard to these doctrines, I think that “interest of all consumers” means an aggregation of individual consumer’s interest that is infringed or threaten to be infringed by entrepreneur. Because, with regard to consumer, interest of individual consumer is infringed by entrepreneur’s act of inappropriate conclusion of contract, and it is necessary to sanction the infringement of individual consumer’s interest. In addition, though Article 12 of Consumer Contract Act entitles qualified consumer organization to seek an injunction, it should be interpreted as the state shall have
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responsibility to protect a fundamental rights of its citizen, and qualified consumer organization must be granted the right to injunction in order to execute its responsibility.
If “interest of all consumers” (consumer’s collective interest) means an aggregation of individual consumer’s interest, there are still some doubtful points. These are ① what is relationship between collective interest and public interest? ②why qualified consumer organization is suitable to be a subject protecting interest of individual consumer? and ③ does individual consumer have the right to an injunction?
Looking at the No. ① issue, I have found that the act to protect public interest entails administrative aspect, but if the administration is imposed an obligation to regulate entrepreneur, its purpose is to protect unspecified number of consumers too. In the case of protecting these unspecified number of consumer, when we consider the relationship between individual consumer’s interest and collective interest, the entrepreneur’s inappropriate act restricted by the administration is for the benefit of individual interest, and the number of infringed (or threaten to be infringed) customers are plural in number. If the administration’s decision causes harm to consumer’s interest, it is necessary to claim against the administration (administration’s action relating to the recognition of fair competition agreement concerning the indication of fruit drink that was accepted by FTC in …juice case). In this case, the harm caused (or threaten to cause) is the interest of individual customers who are of large number.
Therefore, in area of consumer law, the content of public interest should be interpreted as an aggregation of individual consumer’s interest.
Section 2 of the research covers issues relating to doctrine No. ②.
To consider if qualified consumer organization is suitable to be an agency protecting the consumer’s interest, it will examine the status of qualified consumer organization (including ability to pursuit a lawsuit, reliability, and its social status).
Regarding the ability to pursuit a lawsuit, qualified consumer organization is obligated to setup a expert committee, and able to deal with complex legal issues concerning consumer’s damage. Qualified consumer organization is also required to have firm financial foundation to properly perform its duty of demanding an injunction.
In addition, qualified consumer organization is in better position to file a lawsuit than administration.
With regard to its reliability, the structure and duty of qualified consumer organization must be regulated by law. A strict approval by Prime Minister shows that the qualified consumer organization is trustable. In addition, strict supervision and a burden of duty lays on it are also evidence to give a trust on qualified consumer
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organization Moreover, if qualified consumer organization acts unfairly, entrepreneur can file a criminal charge against qualified consumer organization. This indicates that qualified consumer organization is supervised by entrepreneur and the former’s reliability is considered as a highly valued factor.
Relating to public character, Consumer Contract law specifies organizational structure, functioning duty and strict supervision of qualified consumer organization.
Although demand for an injunction is considered as an investigation responsibility against attempted act, the latter is justified in criminal law, because it is recognized as an act to protect for public interest. In addition demand for an injunction is similar to an administrative measure so that qualified consumer organization must have public character as administrative agency’s. Moreover, qualified consumer organization has to act to protect consumers, thus the market fairness shall be secured by that action. For the above reasons, qualified consumer organization has public character of a market supervisor.
The following part of research shall deal with the efficiency of an injunction. The research shall look into the issue by using legal and economic science, Coase’s theorem and the viewpoint of protecting property ownership.
Coase’s theorem shall be explained in the following. The ideal of Coase’s theorem is to resolve the issue of negotiation among parties, but in reality, due to factors obstructing the negotiation (transaction cost), a law should be built to eliminate the transaction cost, though this task is difficult. However, there are problems with Coase’s theorem. ① There is a difference between the assumed image of lay person and that of consumer in Coase’s theorem. The image of lay person in Coase’s theorem is an individual who can do rational accounting of which the assumed consumer do have. But qualified consumer organization is obliged to establish an expert committee, and required to take action to prevent consumer’s damage until the decision is made. This factor indicates that qualified consumer organization is suitable as a negotiator. Another problem is that ② entrepreneur may continue to use inappropriate persuasion or unfair contract term instead of paying money to the consumer. But according to Article 28 of Consumer Contract law, qualified consumer organization is prohibited from obtaining property interest. In addition, the method of defusing interest to consumer is considered impractical. Therefore, such transaction is not completed. As a result, these two problem of Coase’s theorem is resolved.
The following text will mention about protection of property ownership. With respect to the infringement of property ownership, if an injunction order is granted to a small number of victims, the compensation should be made the same as the case of a larger
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group of victims. This way of thinking about protection of property ownership has problem that it cannot grant injunction to a large number of infringed (or threaten to be infringed) consumers in consumer damage case. However, if we consider the efficiency in the context of this thinking, the problem will be resolved by giving the subject who can represent consumer’s interest a position of negotiator. The appropriate negotiator shall be qualified consumer organization.
Presumption that agreement by way of negotiation maximizes the wealth is based on the notion that “people can decide what is benefit themselves”. On this presumption, a question arises why qualified consumer organization can decide the interest of other individual consumers? Two aspects of this problem include ① whether decision by a third person is acceptable, and ② whether qualified consumer organization is able to represent consumer’s interest.
For issue No.①, it is necessary to have representation by a third person to protect the weak, and if we think that the representative have a function of extending and supplementing individual autonomy and decision by a third person is justified in certain circumstance, this problem shall be resolved.
Relating to issue No.②, qualified consumer organization can represent consumer’s interest because it has excellent capacity of information and negotiation, and is able to protect consumer even before the settlement is made.
For the concept of aggregation, there exists a problem whether individual consumer can exercise the right to injunction. About this problem, it needs to examine on what basis the right to injunction is recognized in civil law.
In Civil Law, there are different explanations about legal ground of the right to injunction including ① from the concept of right (absolute right), the right to injunction arises as a result of a right infringement (exclusive right). ② from the concept of tort, the right to injunction comes up as a result of tort (Article 709 of the Code Civil); ③ from the concept of illegal infringement, the right to injunction results from unlawful infringement of right and/or interest; ④ from the concept of infringement of public order, that right to injunction is made upon the infringement of public order. Explanation No.① has problem that restriction of the range of demand for injunction only to infringement of exclusive right is too narrow, and the right to injunction in case of interest infringement is not recognized. The No. ② explanation incurs a problem that structure of tort system (post-event restoration) and injunction system (prevention) are different, and that tort law requires subjective conditions and completion of compensation responsibility but is difficult to prevent compensation which is also contrary to the principle of monetary compensation in tort law.
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Explanation No. ③ and No. ④ both have problem as it limits to exclusive right, and they use vague concept of order whose justification and structural principle have not been clarified.
From these findings, I think that exclusive protection of right is essential and located inside absolute protection area, and depending on the infringement situation the exclusive protection may stay outside the justified relative protection area. In addition, the right to injunction may be based on provisions of articles 199, 211, and 414(3) of the Civil Code. However, Article 414(3) has problem with the interpretation of forbearance obligation. As instructed by Article 1 of the Civil Code, the interpretation of forbearance obligation must follow the principle of not infringing upon the rights of other. Article 1(1) requires that public welfare is separated from the content of private rights and such content must follow principle of not infringing upon other’s rights. Furthermore, article 1(2) and 1(3) also instruct the obedience of this principle..
Chapter 2. Comparative Study on Injunction Claim in Japanese Legislation
Chapter 2 examines such issues as what act shall be the object of injunction in other legislations which contain injunction claim related provisions and its similarity with the act being an object of injunction claim in consumer organization’s litigation system. In addition, the consumer organization litigation system shall be examined to demonstrate the necessity to deter the bringing of injunction claim against entrepreneur’s act which become an object of an injunction in consumer organization litigation system in connection with the existing legal legislations.
The legislations used for comparison include Intellectual Property law (Patent law and Copyright law) and Competition Law (Anti-monopoly Law and Unfair Competition Prevention Law). The comparison shall look at the protected legal interest, the illegality of infringing act and the severity of damage.
In the view that protected legal interest is economic interest, consumer organization litigation system is consistent with Competition Law (Antitrust Law = economic interest obtained by transaction with conditions established under fair and free competition, Unfair Competition Prevention Law = interest that businessman obtains by doing business).
Relating to the illegality of an infringed act, the Unfair Competition Prevention Law provides that abuse of right to free business is an illegal infringement, the Antitrust Law consider the abuse of superior position is illegal infringement. Consumer Law enables the evaluation of entrepreneur’s superior position whether it is better than that of the consumer with respect to information and negotiation capacity. Therefore, the act
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becoming an object of injunction claim is also consistent.
Concerning the severity of damage, Patent Law and Copyright Law has indicated the status of exclusive right toward “information”. Once the information is used, damage shall continue to occur and increase. In considering the presumption of damage provided in Patent Law and Copyright Law, the damage caused by infringement of patent right and copyright is thought to be serious in the view that obvious damage is expanding. There are two different opinions about Antitrust Law of which one argues that object of protection is competition order and protection of consumer is secondary (popular opinion), while the other opinion thinks that object of protection is consumer (powerful opinion). Among popular opinion, some think that the protection of consumer is the goal. Here, protected consumer is a group of consumers. Accordingly damage resulted from an act infringing Antitrust Law is considered serious. Similar to Patent Law and Copyright Law, Unfair Competition Prevention Law also provides the presumption of damage and allows the evaluation of severity of damage caused by unfair competition similar to that of Patent Law and Copyright Law. Regarding to consumer organization litigation, because the injunction claim has to follow the requirement that arisen (or probably to arise) damage is made to a unspecified number of customers, the damage arising from illegal act of entrepreneur must be serious. And consumer’s damage are able to be evaluated. In addition, there must be a large number of customers who may become victims and consumer’s damage must be able to be evaluated in size and severity even if each item is just a small amount.
Chapter 3. A Comparative Study of Foreign Law (EU)
Though EU Directive on injunction (Directive 98/27) provides injunction claim as a means of protecting “collective consumer interest”, but what “collective consumer interest” means is not fully explained. Because the definition of “collective consumer interest” is not sufficiently elaborated, it is difficult to have an effective protection of
“collective consumer interest”, and if a vague concept that “collective consumer interest”
is not a mere sum of individual interest is kept still, there will be a problem for it to be applied in practice by enforcers, as a result, the protection of consumer right becomes insufficient.
There are two approaches to the definition of collective interest including: ① approach considering a specific definition is useless, and ② approach attached with a pessimistic definition which does not regard “collective consumer interest” as a sum of individual interests. No. ① approach entails a problem of not having specific meaning, and No. ② approach does not give guidance for judge, but this negative definition does
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serve as a starting point for building a positive definition.
Collective consumer interest can be defined as following.
1. Collective interest of consumers is not a sum of individual interests.
2.1. Existence of the collective interest of consumers shall be presumed when:
a. A large number of consumers are affected by a particular practice or the breach is persistent;
however, a small number of infringements or discontinuation of a practice shall not in itself preclude the existence of the collective interest of consumers; and/or
b. A particular practice affects every potential consumer in a given situation; and/or c. A particular practice affects interests which are of special importance for consumers, in
particular life and health.
2.2. If one of the aforementioned conditions is met, rejecting a claim for protection of the collective interest of consumers requires appropriate justification.
3. In order to demonstrate the existence of the collective interest of consumers, example(s) of individual consumer interest involved shall be provided as evidence.
This argument of EU refers to interpretation of requirements like “unspecific and many consumers” and “doing or might do” in Consumer Contract Law article 12. In these requirements, qualified consumer organization demonstrates only that infringement action of entrepreneur was conducted once (presumed that infringement action of entrepreneur continuously affects against unspecified and many consumers), entrepreneur should demonstrate that infringement action was only against restricted consumers. And if individual interest of consumer is infringed, interest of many consumers might be infringed, therefore it should be interpreted that it is sufficient for qualified consumer organization to demonstrate that one consumer’s interest might be infringed.
Chapter 4. Relation to collective consumer damage redress system― and the possibility of application
Chapter 4 of this study presents a conclusion that “collective consumer interest is an aggregation of individual consumer interest” can apply not only to injunction claim but also to compensation claim.
At present, about the compensation claim by consumer organization, draft Law on Consumer Trial Procedure for Special Case has been discussed in the Diet. The study relating to disadvantageous tax issue from administration’s perspective is also conducted. Like the classification of damage, collective consumer damage redress claims can be classified in two types including: ① amount of damage is easy to prove and the litigation cost can be defused to consumers, ② the amount of damage is not
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easy to prove and litigation cost can also be spread to consumers. Draft Law on Consumer Trial Procedure for Special Case supports type ①, and for the benefit of tax issue raised by administration, option two ② is mainly appropriate. But problem is whether protected interest in type ① and type ② are the same. Regarding to type ①, looking at the Draft Law on Consumer Trial Procedure for Special Case and reports up to now, individual consumer interest is the protected legal interest. And in type ②, it is not the individual consumer interest to be protected. Moreover, according to article 1, in an injunction claim, protected legal interest is not individual consumer interest (aggregation of interests).
However, when individual consumer interest is infringed (might be infringed) consumer damage shall be large in number. Therefore, in an injunction claim, both ① and ② should be considered as protected legal interest (an aggregation of individual consumer interests). Concept of aggregation do not incur this problem. Accordingly, in the concept of aggregation it is also possible to apply to compensation claim.
In the case of type ②,there is a problem whether qualified consumer organization should defuse compensatory money to consumers. About this problem, according to Cy
‐Près principle, compensation money should belong to qualified consumer organization.
Cy‐Près principle means that when the goal of relevant parties is impossible or difficult to legally be effective, a situation so close to the goal should be obtained within possible restriction, and if the dissemination of compensation money is impossible or difficult to make, it will go to consumer redress indirectly by contributing to association that claims for consumer damage redress. In the case of type ②, if the compensation money is disseminated to individual consumers, damages is insufficient. That means the division is impossible. So if damages return to entrepreneur, it permits entrepreneur to obtain inappropriate profit which is unfair.
Therefore in type ②, when the compensation money is made to qualified consumer organization which acts for consumer protection, the activity of qualified consumer organization shall increase and so the consumer protection. Therefore, in type ②, damages should belong to qualified consumer organization.
