가격담합으로 인한 공정거래 손해배상소송에서의 손해액 산정: 실증경제분석 증거에 대한 법원의 수용 사례 및 기준을 중심으로

Abstract

The Supreme Court of Korea rendered a landmark decision on the issue of admissibility of empirical economic analysis evidence in calculating damages caused by price-fixing cartel regarding military fuel bid-rigging case in July 2011. In this case, the use of economic analysis in assessment of damages has come a major issue because the claimed damages are substantial. Various types of evidence were presented during the litigation procedure such as the damages assessments based on the yardstick method and the difference in difference method applying multiple regression techniques which resulted in substantial difference between the amounts offered as relevant damages. Whereas the Seoul Central District Court admitted complicated economic analysis evidence as a basis for its damages assessment with some modifications, the Seoul High Court having jurisdiction over the appellate instance took a case-specific approach and stated that the method to be applied should be chosen based on consideration of what would be most reasonable in resolving the matters of the particular case at hand, despite the validity of each form of analysis presented. The Supreme Court clarified some disputed points relating to the calculation standard of “hypothetical competitive price”, that is ‘but for’ price while rebutting the decision of the Seoul High Court and remanding the case to it. However, other critical points still remain to be made clear such as whether and on what criteria to adopt empirical economic analysis evidence and whether and to what extent to control such evidence normatively. This article aims to attempt to do comparative analysis of main issues and holdings among the decisions of Supreme Court and lower level courts and suggests the author’s opinion on relevant unclarified issues.