독점규제법에 의한 손해배상의 私訴의 활성화

• 영문명: Facilitating Antitrust Damage Action
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 김두진(Doo-Jin Kim)
• 간행물 정보: 『비교사법』비교사법 제11권 4호(하), 331~366쪽, 전체 36쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2004.12.02

영문 초록

Until recently, we have generally understood the antitrust enforcement as the government execution only including implementation of the antitrust law by the administrative agencies such as the Korea Fair Trade Commission(hereinafter “KFTC”) and the Department of Justice. There are, however, another form of antitrust enforcements by private sector litigation, which is never of less importance than the public enforcement in terms of practicality. From my perspective, both public and private enforcements can and should collaborate for the maintenance, protection and promotion of competition in the market economy. For example, if private party practices the antitrust law in order to get restitution for his own damages, it can simultaneously make compensation for him as an intended effect, and provide deterrence of the violations as an unexpected result. So the antitrust law itself demands us “competition” in the realm of enforcement. Under the conventional system, private parties injured by antitrust violation could sue the injuring parties for recovery of antitrust damages under the provision of the antitrust law and the civil law. In the name of the civil law, the victims could sue the violators anytime without waiting KFTC’s correcting orders but they should follow the regulation of the KFTC‘s correcting order in suing violators on the basis of the antitrust law. And enterpriser liable for damages under The Monopoly Regulation and Fair Trade Act may not excuse himself from such a liability by proving that he did not act intentionally or negligently against the person concerned(strict liability system allowing no defense). In this paper, some recommendations for facilitating antitrust damage action are suggested to the legislature as follows : (1)the abolition of the requirement of the prior existence of FTC’s correction orders for antitrust damage actions; (2)the import of the antitrust punitive damages; and (3)the modification of the strict liability of the violators and introduction of the presumption clause admitting some kind of inference in damages measurement and the conversion of the burden of proof about the defendant’s fault.

목차

Ⅰ. 서언

Ⅱ. 독점규제법에 의한 손해배상의 私訴제도

Ⅲ. 독점규제법에 의한 私訴의 활성화방안

Ⅳ. 결론

참고문헌

ABSTRACT