입찰담합에 따른 손해액의 산정에 관한 연구 - 계량경제학적 분석의 효용과 한계를 중심으로

Abstract

Proof of damages in the lawsuit for damages due to violations of the Monopoly Regulation and Fair Trade Act(hereafter “the Act”) is based on the assumption of market conditions. In other words, the calculation of damages is the process of estimating the amount of damages based on probability and statistical methodology based on the hypothetically competitive price that would have existed without collusion. It always has a large room for arbitrary calculation. Therefore, the normative review process is inevitable for the results of econometric analysis. It is the case in the United States, where economic analysis is most actively used in calculating damages. The calculation of the amount of damages due to bid-rigging is to determine the scope of compensation having reasonable causality with the alleged conduct. Even though the econometric analysis is used to estimate the hypothetical competitive price, the process of damage calculation has a very normative character. Econometric methods have their own strengths and weaknesses in each technique, and all of them contain significant uncertainty in the sense that the analytic results can depend on the intention of the analyst. Therefore, it is necessary to find a way to properly utilize the econometric analysis so that the proof of the amount of damages does not become an excessive burden to the victim, taking into account the compensatory character and deterrence effect of the damages claim under the Act. In this context, above all, in the lawsuit for compensation for damages due to bid-ridding, it should be lowered the level of proof of the victim(the plaintiff) about the amount of damages. Here, the key is how to set up a condition that does not require plaintiffs to prove damages solely based on econometric methods from the beginning. It could be considered that as long as there is no obvious flaw, plaintiff could insist on a simple difference according to the comparative market approach or before-and-after method, and the defendant(the conspirators), should rebut based on the fact that other factors besides collusion, have influenced the bid price. Such a method does not need any amendment to the Act and could be taken into account in the process of damages calculation by the court.