입찰담합으로 인한 손해배상청구소송에서 소멸시효의 기산점

Abstract

Due to the special nature of violations of Korean Monopoly Regulation and Fair Trade Act(MRFTA), liability for damages under the MRFTA is different from tort liability under the Civil Act in their contents. In the case of extinctive prescription, there is no provision in the MRFTA,which causes a dispute about how to understand extinctive prescription under the MRFTA. Long term extinctive prescription of liability for damages is counted from a day when damages occur in bid rigging. Supreme Court of Korea [hereinafter the Court] takes the same stance on a case of tort liability. Determining when the damages realize, they should not try to delay it in consideration of the teleological interpretation, especially the purpose of the legislation. They should keep in mind that the purpose of the long-term extinction prescription is to fix legal relationship as soon as possible. Even if a teleological analysis is considered, it should be harmonized within a range that does not impair legal stability. According to this viewpoint, the term should be counted from when they enter into a contract, the time standard for damages according to the Court. At that point, the damages caused by the bid collusion are materialized. A contract is established irrespective of whether or not payment is made. And a binding of the contract arises and both parties are responsible for the implementation. In addition, it is unreasonable to make the starting point depend on the subject matter of the party whether payment is made. When a contract is concluded through several steps, it is a question at which point the contract is concluded. However, this basically corresponds to the interpretation of the contract. It must be judged when the intention of the party shown in the winning bid is specifically reflected in the contract. As a general rule, the declaration of intention formed in the winning bid will be specified in the first contract. On the other hand, there are cases where the plea of completion of extinction prescription is against the principle of good faith. This also may apply to damages caused by bid rigging that is illegal. However, in the ordinary case, if the extinctive prescription is completed due to a delayed claim owing to a mere public procedural delay, it will not violate the principle of good faith. It is a real obstacle, not a legal obstacle. The principle of good faith should be interpreted as strictly as possible to prevent escape to the general provision. The Court applies the principle of good faith to the protest of the completion of extinction prescription, but recognizes a limit because of this point. In addition, when the state or local government becomes the subject of the private economy and they are subject to the private law system, the principle of good faith on the ground of equality principle should be applied more carefully. The use of damages, a civil remedy, against violations of the MRFTA, which relied solely on administrative sanctions and criminal sanctions, is meaningful in achieving compensation damages and deterrent effects. However, if the effectiveness of the MRFTA is emphasized, it will harm legal stability and fairness. A interpretation of a law should take legal stability into account. Therefore, a interpretation of the MRFTA, which does not prescribe the extinction prescription, has its limitations. A long term extinction prescription of the current MRFTA should be interpreted as of the Civil Act, which counts from the time of damages. Therefore, the extinction prescription should start at the conclusion of the contract in which the winning price is specified in the contract.