국민의 소송참여 확대와 남소(濫訴, frivolous lawsuit) 방지를 위한 공법적 통제방안 연구* - 미국의 이른바 ‘국민소송’에 관한 남소방지제도 논의를 중심으로 -

초록

The U.S. Department of Justice announced that in 2024, it recovered approximately $2.9 billion in settlements and other recoveries in government- brought lawsuits under the Federal False Claims Act, marking the largest amount recovered in history. The Department of Justice emphasized that this result represents a continuous increase since 1987, with growth particularly concentrated in areas such as government procurement and Medicare. Notably, following COVID-19, increased federal spending on Medicare and government procurement contracts has led to a marked rise in lawsuits filed by private parties. A key factor cited is that private parties receive 15~30% of the damages awarded if they prevail. In response, discussions in the United States are intensifying regarding establishing legislative standards for frivolous lawsuits over the 2024~2025 period. Notably, regarding the Department of Justice’s authority to dismiss cases, views are emerging that a reasonable relevance standard should be adopted to address the situation where the scope of this authority is interpreted differently by each appellate court. Additionally, opinions are being presented that only genuinely valid cases should be recognized as private enforcement actions, and that the scope of private enforcement actions must be defined as various state governments enact Qui Tam lawsuit structures. Frivolous lawsuits are unrelated to legitimate rights remedies and are defined as “lawsuits filed with the purpose of delaying proceedings, harassing the opposing party, or causing them undue hardship” by exploiting loopholes in the legal system. They typically manifest as excessive compensation claims, baseless monetary demands, or lawsuits pursued for unjustifiable purposes. Specifically, according to the Federal Rules of Civil Procedure (FRCP), a lawsuit must be justified under existing statutes and must involve a nonfrivolous claim. Accordingly, the U.S. Supreme Court has defined a frivolous lawsuit as one “lacking any legal or factual basis whatsoever.” Thus, a frivolous lawsuit is defined as: (1) when factual claims are demonstrably without foundation, or (2) when the lawsuit is based on a demonstrably unfounded legal theory. The expansion of the so-called citizen lawsuit system leads to an important public law debate: finding a balance between broadening citizen participation in litigation and preventing frivolous lawsuits. The litigation framework, which is gradually being explored through elements such as plaintiff standing, subject matter of the suit, and the amount of damages awarded upon victory, respects the U.S. constitutional principle of broadly recognizing the right to a trial and the right to sue. However, this raises the question of how far restrictions on these rights should extend. Analysis of the current FCA and taxpayer suits reveals the following legal issues concerning frivolous lawsuits. First, regarding standing, the FCA permits any person to bring suit, and the plaintiff sues in the name of the government, making it a derivative suit. However, concerning the scope of standing recognition, the U.S. Supreme Court ruled that the government may move to dismiss at any time, and the court must apply Federal Rule of Civil Procedure 41(a), thereby recognizing the federal government’s broad power to dismiss. Furthermore, the Supreme Court applied the double nexus theory to standing in taxpayer suits, requiring a logical causal relationship between the taxpayer status and the legal relationship in question, and placing the burden of proof for the violation on the plaintiff. This establishes substantive and procedural safeguards against frivolous lawsuits. Second, regarding defendant standing, statutes like the FCA provide that lawsuits may be brought against any person who knowingly submits or approves a false claim. Thus, any government entity or official can be a defendant. While the U.S. Supreme Court ruled in 2000 that local governments could not be defendants, it reversed this in 2003, holding that local governments are included. Local governments are also recognized as defendants in taxpayer suits. Third, regarding the subject matter of the lawsuit, while the implied covenant theory and collective knowledge theory have broadly recognized the scope of intent under the FCA, the scope of falsity is limited to cases reaching a substantial degree. In taxpayer suits, the types of harm recognized are broad, encompassing not only financial but also non-financial circumstances. Fourth, regarding the form of litigation, the partial delegation theory has been applied, recognizing standing regardless of whether the plaintiff suffered actual harm. Fifth, concerning litigation procedure, the FCA requires the federal government to decide whether to join the lawsuit within 60 days. However, in 2023, the U.S. Supreme Court ruled that even if a derivative suit is filed, the federal government may exercise its right to dismiss the suit at any time to avoid forum shopping. Additionally, while compensation amounts are fundamentally determined by the court, generally 15~20% is recognized for subrogation suits and 25~30% for independent suits. Furthermore, recent arguments have emerged that in cases involving fraudulent claims utilizing artificial intelligence where intent is difficult to establish, the claims may not be actionable. Accordingly, when discussing the introduction of a citizen lawsuit system in Korea, it should be premised on measures to prevent abuse, such as establishing plaintiff standing, defining the subject matter of the lawsuit, and determining compensation amounts. Specifically, regarding plaintiff standing, a review is required on the dual-standard theory demanding a connection between the claimant and the false claim, as well as the scope of the government’s right to dismiss lawsuits when they are filed. Furthermore, while the scope of intent could be broadened through theories like the implicit covenant theory or collective awareness theory regarding the subject matter of litigation, it is also necessary to discuss standards for determining substantial falsity within the scope of falsity to prevent abuse of the litigation system due to minor false claims. Rather than uniformly prescribing compensation amounts, a more comprehensive review of factors such as the case’s significance and the claimant’s burden of proof regarding falsity should be considered. Alternatively, establishing an initial cap on compensation amounts during the system’s early implementation phase should also be discussed.

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