Коллективная правовая защита – иски объединений и право объединений на предъявление иска в немецком гражданском процессе

摘要

The subject. The article is devoted to problems of institute of collective legal protection in German civil procedure law. The purpose of the article is to confirm or disprove hypothesis of the need to introduce the institution of general class action in German civil procedural law. The methodology of the study includes general scientific methods (analysis, synthesis, description) and sociological approach. The main results and scope of their application. German civil procedure law is based on the principle of "two parties". However, there are many situations that do not fit into the traditional scheme of individual legal protection, because either the conflict is affected by many persons, or the conflict goes beyond the individual interests of the affected persons. For processes in which a significant number of persons are involved, as a means of protection, first of all, claims for abstention from actions (Unterlassungsklagen) submitted by associations of consumers and entrepreneurs are offered. These claims, in spite of the dogmatic difficulties, have been implemented in practice and proven. Special legal regulation on this issue exists in the legislation on consumer protection, competition and Antimonopoly legislation. Added to this are the more recently the claims of the unions about the withdrawal of the profits (Verbandsklagen auf Gewinnabsch?pfung). The claim for recovery (Einziehungsklage), which allows associations to join several unidirectional claims of consumers in a single lawsuit, is also regulated in a special way. However, there is still no General class action in German law. Conclusions. The author concludes that the absence of a General class action is a legal gap in German civil procedure law. This situation is criticized as insufficient to raise the issue of causing mass harm before the court. First of all, there is the absence of a collective action aimed at compensating for harm, which is regarded as alien to German law. The relevant initiatives of the European Commission in this regard contain only non-binding recommendations to States parties on the introduction of collective forms of legal protection. This topic becomes even more relevant in Germany in connection with the "diesel scandal" and the introduction of the bill on a collective model claim for recognition (Musterfeststellungsklage).