New Developments of Collective Legal Protection in Germany and Japan

Abstract

This paper compares the collective legal protection system in Germany with that of Japan in order to examine both the merits and demerits of both systems. First, this paper describes the Injunction Claim of a CA (Consumer Association). In order to examine some problems about this claim, this paper discusses the theoretical reason why a CA has the injunction claim. Moreover, this paper describes whether the requirements in the provision regarding the injunction claim have a “double nature.” Second, this paper discusses the Collective Monetary Claim Systems: “the appointed party action system” in Japan and the collective action system by CA in which a CA collects claims of consumers as victims and brings an action in Germany and Japan. Third, this paper describes the merits and demerits of the Unlawful Profits Claim (claim for confiscation of profits: Gewinnabschöpfungsanspruch) in Germany. The author concludes that full compensation of damages of all victims is not possible within these systems. Moreover, the profits that the infringer has acquired by infringement can remain with him/her. Therefore, these systems are not sufficient to deter infringements and it is necessary to reform them in both countries.