카르텔로 인한 손해액의 산정 - 이론과 실제

• 영문명: Calculation of Damages Caused by Cartel: Theory and Practice
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 홍대식(Dae-Sik Hong)
• 간행물 정보: 『비교사법』比較私法 제14권 제3호(하), 1101~1136쪽, 전체 36쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2007.09.30

영문 초록

  The compensation for damages caused by cartel requires a difficult process for legal practitioners to calculate damages as accurate as possible based on victim’s loss. This process can be carried out with economists’ assistance to be done in the form of economic analysis which will be assessed under the legal framework. To what extent the court will request for evidentiary accuracy of damages and by which standards it will assess economic evidence presented by the parties would be the key to whether damages action against cartel are likely to be activated.
  Typically the measure of harm in a cartel damages case is taken to be the difference between the price actually paid for and the competitive price but for the infringement. According to this “difference theory”, the competitive price should be estimated as comparison with the actual price. It is the price that would have been formed in the absence of the cartel. It can be proved by direct evidence in very rare cases, but in most cases the analysis requires the application of economic skills by which “but for” price, that is hypothetical competitive price may be illustrated with reference to a specific cartel case. For those methods which have been identified for calculating overcharges there are the “before-and-after” method, the yardstick or benchmarking method, the cost-based approach, theoretical modelling method and econometric modelling method. When defendants facing compensation for damages are also subject to imposition of administrative fine, adjustment system is needed to avoid probable overdeterrence in a way of taking compensatory payments into consideration during calculating administrative fine. The recent judgment of the Seoul central district court regarding damages claim lawsuit against cartel in the auction market for supply of oil to the military involving 5 oil refining companies provides with an interesting material for a case study to several legal issues addressed in this paper.

목차

Ⅰ. 들어가는 말
Ⅱ. 카르텔로 인한 손해의 의미와 손해액 입증
Ⅲ. 카르텔로 인한 손해액 산정방법
Ⅳ. 손해액과 과징금의 관계
Ⅴ. 사례연구: 5개 정유사 군납유류 입찰담합 손해배상 사건
Ⅵ. 맺는 말
【참고문헌】
[Abstract]

키워드

공정거래법 카르텔 손해배상 손해액 경제 분석 가정적 경쟁가격 과징금 Fair Trade Act Cartel Compensation for Damages Damages Economic Analysis Hypothetical Competitive Price Administrative Fine