損害의 轉嫁와 獨占規制法 第56條 1項 ‘損害’의 槪念 및 範圍 - Passing on Defence 問題를 中心으로

• 영문명: Comparative Analysis of Anti-Competitive Damage and Passing on Defence in the EU, UK, USA and Korea
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 장혜림(Hye-Lim Jang)
• 간행물 정보: 『비교사법』比較私法 제14권 제4호, 311~350쪽, 전체 40쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2007.12.30

영문 초록

  Anti-competitive behaviour may usually harm an indeterminable number of submarkets because the production of goods or services frequently involves a number of intermediate firms. Due to the fact that anti-competitive overcharges that are extracted at one level may be passed on to another, the injury tends to be spread over numerous remote parties. The passing on defence is where a defendant denies liability on the basis that the plaintiff has passed on the illegal overcharge to his own customers. It allows a defendant to argue that a plaintiff’s loss has been reduced or negated by the plaintiff having passed on to his customer including indirect purchaser all, or a proportion of, any overcharge resulting from the defendant’s actions. Under the passing on defence, the purchasers are considered uninjured if they were able to pass on the overcharge to their customers. The availability of the passing on defence can highlight the conflict between the compensatory principle and effective deterrence. Key question is the nature of the damage to which a plaintiff will be entitled, and particularly whether a company may rely upon the so-called passing on defence in such claims. Does permitting passing on defence be able to reduce the deterrent effect of private damages, if the defendant is able to prove passed on overcharge on behalf of the plaintiffs? Is it probable to be multiple recovery for a same infringement, if the passing on defence were not to be allowed and indirect purchasers were entitled to bring actions in addition to direct purchasers who had suffered loss? I will discuss various issues, including above mentioned topics, relating to whether to admit defendant’s passing on defence.

목차

Ⅰ. 序論
Ⅱ. 競爭政策 側面에서 損害轉嫁 抗辯의 認定 與否
Ⅲ. 私法上 法理의 側面에서 提起되는 損害轉嫁 抗辯의 爭點
Ⅳ. 結論
【참고문헌】
[Abstract]

키워드

독점규제법 위반행위 직접구매자 간접구매자 손해전가의 항변 손익상계 부당이득 인과관계 Anti-Competitive Behavior Direct Purchaser Indirect Purchaser Passing on Defence Unjust Enrichment Causation