공정거래법상 손해액 인정제도

Abstract

As with the general civil cases, in case of the claim for damages resulting from the violations of the Monopoly Regulation and Fair Trade Act of Korea(hereinafter referred to as ‘the Fair Trade Act’), an antitrust violation of the enterpriser, the fact of injury, causation and the amount of damages must be proved by the plaintiff. However, if the victim lacks expertise in economic dynamics, it is difficult to prove all these elements. Especially in overcharge cases, as it is required to estimate ‘but for price’ that would have been paid if the violation had not occurred and to analyse by econometric method to isolate the harm caused by the antitrust violation, the victim does not demonstrate the damages in spite of the recognition of the fact of injury. Though the Fair Trade Act establishes a new article of recognition system of damages amount in order to relieve the burden of proving damages and revitalize damage claim litigations, it is not used actively in a trial. This paper analyzed theories formed by domestic and international legislation and cases. Through this analysis, requirements and criteria to apply the recognition system of damages amount were examined, problems of current regulations were pointed out, and improvement plans were suggested. Taking into account of the fact that recognition of damages amount under the Fair Trade Act has the characteristics of a modern form of lawsuits which makes the victims prove the fact, it should be approached from the direction which ensures an effective remedy for victims, suppresses violations and strengthens the private enforcement of the Fair Trade Act. To be concrete, application requirements of the recognition system of damages amount must be revised to ‘the cases that it is difficult by nature to verify the fact that is necessary to determine the amount of such damage in light of the character of the fact’, and the court needs to recognizes the range of difficulty of proof broadly and to use the recognition system of damages amount actively. However, in order to minimize losses due to the disadvantage of the enterpriser who utilizes the recognition system of damages amount, the court needs to find indirect facts which provide a basis for the recognition system of damages amount. The system should be operated in a way to impose the risks associated with the uncertainty of estimated losses on the enterpriser who caused such damage by his misconduct.