독점규제법 위반으로 인한 손해배상소송에서 손해액 산정과 손해액 인정제도

Abstract

Nowadays torts include diverse forms of infringements on property rights, even reaching to the extent of personal injuries caused by environmental pollutions or medical malpractices. The antitrust infringement, an illegal act that distorts market systems, is not an exception; harm or loss incurred by the antitrust infringement can also be compensated through damage claims. Though compensation for damages regarding antitrust infringements had not been frequently applied since it was first established in Korea in 1980,starting from the 2000s, increasingly more lawsuits have been brought to courts. A major example is the Military Fuel Bid-Rigging case, which was decided by the Supreme Court ten years after the lawsuit was brought to the Seoul District Court. Touching upon numerous issues including estimation of damages, standard of proof, and normative control over the use of economic evidence provided by experts, this case triggered my interest of damage claims on cartels, a complex issue that is based on general theory of tort claims yet has specific characters of antitrust infringements. This thesis deals with damage claims of antitrust law infringements, mainly cartels. It discusses calculation of damages, analyzing scope of liability,standard of proof regarding damages, and calculation of damages. Here I further explicate my suggestion : antitrust law deals with issues that happen in markets in which many factors interact, making it difficult to measure the effect of an alleged cartel on price while isolating other factors. The key to establishing a more favorable compensation system may lie in proving and estimating damages, and essentially activation of damage claims. First, in order to activate damage claims, courts must consider redefining the traditionally narrow definition of harm. According to the widely accepted Difference Theory, actual harm is defined as reduction of a person’s asset byan unlawful conduct, the difference between the actual position and the position of that would have been had the unlawful conduct not taken place. However, this theory contains causation and calculation of damages in the definition of harm itself, so it can demand too much to the injured who wants to get compensation. Courts also must relieve the plaintiff’s burden of proof about causation and extent of damages because the extent of damage is at best an estimate,relying on assumptions and approximations. Based on a special rule, Korean Antitrust law enables judges to make an assessment of damages, a policy that can lower the burden of proof about the damages incurred. Yet an additional set of article is necessary, such as the German law of civil procedures which broadens the scope even to the extent of an injury not fully proven in claims under general tort law. The system of damage claims on cartels is under the influence of both civil law and antitrust law. This thesis, though based on the fundamental theories of civil law, also attempts to address new interpretations and suggestions of activating damage claims that the traditional viewpoint of infringement of rights fails to provide. It is my hope that this thesis may provide insight into the concept of harm, causation and the estimation of damages, contributing to the reestablishment of civil law’s status in the system of damage claims on cartels.