공정거래법상 손해배상명령제도 도입에 관한 연구

Abstract

There are two main ways to enforce competition law. One is publicenforcement by government agency and private enforcement by damagedbusinesses. The enforcement of competition law in Korea has depended onpublic enforcement. It has many advantages like fast and efficientenforcement or low cost. However, One of the big problems in enforcingMonopoly Regulation and Fair Trade Act(MRFTA) in Korea is thatcompensation for damages is not easy compared to monetary sanction. Korea Fair Trade Commission(KFTC) investigates many cases and imposeshuge surcharges every year. However, the paid money does not attribute tothe victims but the Treasury. The victims should file a separate civil suit tobe rewarded for the damages. Considering that the civil procedures are verycomplicated and prissy, the victims are unwilling to file a suit and becomedissatisfied for the KFTC. For this reason, there have been arguments that KFTC have to be able to orderthe payment of damages without filing a suit to the court. The order of thepayment for damages have been recognised to be the jurisdiction of thejudiciary traditionally. The one example of that order by administrativeagency is the order of the payment of money by U.S. FederalCommunications Commission(FCC). The Commission can determine that anyparty complainant is entitled to an award of damages under the provisions ofFCC Act and make an order directing the carrier to pay to the complainantthe sum to which he is entitled. This authority is very particular one whichis hard to find in other acts in the United States. We can guess that itreflects special natures of communications as universal service and the FCCas an independent regulatory commission. I think that the order of the payment for damages by KFTC is not hard tointroduce in Korea. First, it can be against the principle of division of powers in that an administrative agency intend to intervene in dispute betweenparties and settle it by ordering payment of money. Second, KFTC is notindependent and neutral compared to the courts because it belongs to theAdministration. Third, the order of the payment for damages by KFTC is notsuitable to our legal system.