독점규제법상 부당한 공동행위에 대한 손해배상청구
Damage Claim on Cartel of Antitrust Law
|dc.description||학위논문 (박사)-- 서울대학교 대학원 : 법학과, 2012. 8. 김재형.||-|
|dc.description.abstract||오늘날 불법행위는 재산권 침해의 전통적인 영역인 물건의 멸실, 훼손 뿐 아니라 교통사고, 공해, 의료사고 등으로 인한 인신침해, 더 나아가 시장질서를 왜곡하는 위법한 행위에 의하여 타인에게 손해를 발생한 경우에까지 다양한 형태로 발생하고 있다.
그 중 독점규제 및 공정거래에 관한 법률(이하 독점규제법이라 한다)의 위반행위는 시장질서를 왜곡하는 불법행위로서, 이에 대한 손해배상청구제도는 동법 위반행위로 인하여 손해를 입은 자가 가해자로부터 그 손해의 전보를 받을 수 있도록 하는 것에 주된 의미가 있지만 부수적으로는 동법 위반행위를 억제하는 예방기능도 수행한다.
우리나라에서 1980년 독점규제법이 제정된 이래 독점규제법 위반행위에 대한 손해배상제도는 그다지 활용되지 않았으나 2000년대에 들어서면서 제소건수가 증가하기 시작하였으며, 특히 공정거래위원회에 의한 행정적 제재의 단계에서부터 1,000억원이 넘는 막대한 과징금이 부과되어 이목을 끌었던 '군납유류 입찰담합사건'은 2001년 손해배상청구소송이 제기되어 2007년 1심 판결이 선고되고 이어 2009년 및 2011년에 항소심 판결과 대법원 판결이 각 선고되면서, 계량경제학적 분석 등 다양한 손해액 산정방법과 입증책임, 손해액 산정을 위하여 제출된 경제적 증거의 법원의 규범통제 등에 대한 관심을 불러일으켰다.
이와 같은 최근의 동향에 즈음하여 필자는 민법상 불법행위에 대한 손해배상의 일반론에 기초하면서도 부당한 공동행위에 대한 손해배상청구의 특성을 고려하여 위 손해배상제도가 그 기능을 충분히 수행할 수 있도록 하기 위한 연구의 필요성을 느꼈다.
이에 본 논문에서는 부당한 공동행위 및 이에 대한 손해배상청구제도 일반을 이해하고 손해액 산정의 어려움을 덜어주는 등으로 위 제도를 활성화하기 위한 방안을 마련하는 방향으로 논의를 진행하였다.
제2장에서는 합의와 부당한 경쟁제한성으로 요약되는 부당한 공동행위의 성립요건과 입증에 대하여 검토하였다. 그리고 부당한 공동행위의 효과와 관련하여서는 본고의 주제인 손해배상청구제도 외에도 부당한 공동행위를 금지하는 사법상 효력의 의미와 부당한 공동행위에 대한 공적 집행에 해당하는 행정적·형사적 제재 등에 대하여 알아보았다.
제3장에서는 부당한 공동행위에 대한 손해배상청구의 요건을 실체법상 요건및 소송과 관련된 쟁점을 중심으로 살펴보았다. 본론에 들어가기에 앞서 각국의 입법례 및 실태 등을 비교법적으로 검토하였고, 실체법상 요건으로서는 위반행위의 존재, 고의·과실, 위법성, 위반행위와 인과관계 있는 손해의 발생 등을 다루었으며, 그 외에 간접구매자 등을 포함한 당사자, 소멸시효 등을 다루었다.
제4장에서는 손해액 산정에 대하여 살펴보았다. 손해배상의 범위와 손해액에 대한 입증책임의 경감 및 손해액 인정제도를 비교법적으로 고찰한 다음, 우리 독점규제법의 운용에 대한 시사점을 찾아보았다. 손해액 산정을 위한 경제적 증거의 활용에 관하여는 법원의 규범적 통제의 의미 및 그 한계에 대하여 주로 고찰하면서, 그 전제가 되는 경제적 증거의 내용을 이해하기 위하여 손해액의 산정방법과 기법도 간단히 정리해 보았다. 아울러 손해배상책임의 제한 및 확대 부분에서는 과실상계와 손익상계의 문제 및 징벌적 손해배상제도의 도입 여부에 대하여 살펴보았다.
제5장은 본 논문의 결론으로서 이상의 고찰들을 기초로 부당한 공동행위에 대한 손해배상청구에서 손해액 산정을 용이하게 하기 위한 방안을 연구하고, 손해배상제도를 활성화하기 위한 방안을 제시하였다.
부당한 공동행위에 대한 손해배상청구는 민법이 규율하는 손해배상과 독점규제법이 작용하는 부당한 공동행위가 교착하는 영역이다. 본 논문은 민법의 일반원리에 뿌리박으면서도, 전통적인 권리침해행위를 전제로 한 손해배상제도를 고수하는 것만으로는 포섭하기 어려운 부당한 공동행위의 특성을 고려하여 그 손해배상청구를 활성화하기 위한 해석론 및 입법론을 제시하고자 하였다. 필자가 제시한 손해의 개념과 인과관계, 손해액의 산정에 대한 새로운 조명이 민법과 독점규제법의 교착영역에서 민법의 지위를 재확립함에 있어서 조금이나마 도움이 되었으면 한다.
|dc.description.abstract||Nowadays torts include diverse forms of infringements on property rights,even reaching to the extent of personal injuries caused by environmental pollutions or medical malpractices. The antitrust infringement, an illegal act that distorts market systems, is not an exception||-|
|dc.description.abstract||harm or loss incurred by the antitrust infringement can also be compensated through damage claims.
Though compensation for damages regarding antitrust infringements had not been frequently applied since it was first established in Korea in 1980,starting from the 2000s, increasingly more lawsuits have been brought to courts. A major example is the Military Fuel Bid-Rigging case, which was decided by the Supreme Court ten years after the lawsuit was brought to the Seoul District Court. Touching upon numerous issues including estimation of damages, standard of proof, and normative control over the use of economic evidence provided by experts, this case triggered my interest of damage claims on cartels, a complex issue that is based on general theory of tort claims yet has specific characters of antitrust infringements.
This thesis deals with damage claims on cartels: chapter 2 provides a detailed explanation of requirements of cartel—agreement and unreasonable
restriction of competition, along with proofs and effects of cartels. Chapter 3 covers requirements of damage claims on cartels, including infringements and willfulness, as well as parties including indirect purchasers in lawsuits and statute of limitations. Chapter 4 discusses calculation of damages,analyzing scope of liability, standard of proof regarding damages, normative control over the use of economic evidences, and calculation of damages. Chapter 4 also provides additional insight into the concept of economic evidences, briefly introducing a wide range of methods and techniques regarding estimation of damages. Regarding the Military Fuel Bid-Rigging case,estimation of damages is based on a yardstick method and the difference on difference method based on regression analysis. Finally,Chapter 5 serves as a conclusion of aforementioned analyses, suggesting methods of facilitating estimation of damages and activating the system of compensation for damages.
Here I further explicate my suggestion in chapter 5: antitrust law deals with issues that happen in markets in which many factors interact, making it difficult to measure the effect of an alleged cartel on price while isolating other factors. The key to establishing a more favorable compensation system may lie in proving and estimating damages, and essentially activation of damage claims.
First, in order to activate damage claims, courts must consider redefining the traditionally narrow definition of harm. According to the widely accepted Difference Theory, actual harm is defined as reduction of a person's asset by an unlawful conduct, the difference between the actual position and the position of that would have been had the unlawful conduct not taken place. However, this theory contains causation and calculation of damages in the definition of harm itself, so it can demand too much to the injured who wants to get compensation.
Courts also must relieve the plaintiff's burden of proof about causation and extent of damages because the extent of damage is at best an estimate, relying on assumptions and approximations. Based on a special rule, Korean Antitrust law enables judges to make an assessment of damages, a policy that can lower the burden of proof about the damages incurred. Yet an additional set of article is necessary, such as the German law of civil procedures which broadens the scope even to the extent of an injury not fully proven in claims under general tort law.
Furthermore, regarding normative control, courts must evaluate the admissibility and the extent to which economic evidences may be effective. The courts control over economic evidences may include active analysis of solid content in addition to the understanding of methodology, allowing a judge to select a specific economic evidence out of many based on his discretion and even alter a part of it in the process of analysis as far as the identity of the content is not changed. Such discretion in normative control on economic evidences may prove to be efficient in litigations.
The system of damage claims on cartels is under the influence of both civil law and antitrust law. This thesis, though based on the fundamental theories of civil law, also attempts to address new interpretations and suggestions of activating damage claims that the traditional viewpoint of infringement of rights fails to provide. It is my hope that this thesis may provide insight into the concept of harm, causation and the estimation of damages, contributing to the reestablishment of civil laws status in the
system of damage claims on cartels.
|dc.description.tableofcontents||제 1 장 서 론 ·················································································1
제 1 절 문제의 제기 ······················································································1
제 2 절 논의의 범위 ······················································································5
제 3 절 논문의 구성 및 연구방법 ·····························································7
제 2 장 부당한 공동행위 일반 ··················································9
제 1 절 개설 ·····································································································9
제 2 절 부당한 공동행위의 성립요건 ····················································12
I. 합의 ··················································································································12
1. 합의의 개념 ·································································································13
2. 합의의 주체 ·································································································33
II. 부당한 경쟁제한성 ······················································································36
1. 위법성의 징표 ·····························································································36
2. 미국의 당연위법 원칙과 합리의 원칙 ···················································38
3. 독점규제법상 당연위법 원칙의 활용 가능성 ·······································39
4. 정당화 사유 등 ···························································································40
III. 부당한 공동행위의 입증 ···········································································46
1. 개설 ···············································································································46
2. 직접증거에 의한 입증 ···············································································46
3. 간접증거에 근거한 사실상 추정 ·····························································47
4. 법률상 추정 ·································································································49
제 3 절 부당한 공동행위의 효과 ·····························································53
I. 금지의 私法的 효력 ······················································································53
1. 비교법적 검토 ·····························································································53
2. 우리나라의 경우 ·························································································55
II. 행정적·형사적 제재 ·····················································································5 7
1. 일반론 ···········································································································57
2. 자진신고자 등에 대한 책임감면제도 ·····················································58
III. 손해배상청구 ·······························································································59
제 3 장 부당한 공동행위로 인한 손해배상의 요건 ······60
제 1 절 개설 ··································································································60
제 2 절 비교법적 검토 ················································································61
I. 미국 ··················································································································61
II. 유럽 ················································································································62
1. 유럽연합 ·······································································································62
2. 영국 ···············································································································64
3. 독일 ···············································································································66
III. 일본 ···············································································································68
IV. 소결 ··············································································································71
제 3 절 실체법상 성립요건 ·····································································73
I. 개설 ··················································································································73
1. 독점규제법 및 민법상 불법행위에 기한 각 손해배상청구권의 관계 ····73
2. 본 절의 구성 ·······························································································76
II. 위반행위(부당한 공동행위)의 존재 ·························································77
III. 고의, 과실 ····································································································77
1. 과책의 요건 ·································································································77
2. 고의, 과실의 개념 ······················································································78
3. 고의, 과실의 입증책임 ··············································································79
IV. 위법성 ··········································································································80
1. 개설 ·············································································································80
2. 부당한 공동행위의 성립과 민법상 불법행위의 위법성 ·····················82
3. 시정조치와 위반행위의 위법성 추정 ·····················································85
4. 자진신고에 의한 책임감면제도와의 관계 ·············································89
V. 위반행위와 인과관계 있는 손해의 발생 ················································90
1. 부당한 공동행위로 인한 손해배상청구의 특수성 ·························90
2. 손해의 발생 ·····························································································91
3. 인과관계 ···································································································105
제 4 절 소송의 당사자와 소멸시효 ····················································126
I. 당사자 ········································································································126
1. 원고 ···········································································································126
2. 피고 ·········································································································130
3. 관련문제 ···································································································131
II. 소멸시효 ····································································································141
1. 개설 ···········································································································141
2. 소멸시효 또는 출소기한에 대한 입법례 및 판례 ·························141
3. 우리나라의 경우 ·····················································································144
제 4 장 부당한 공동행위로 인한 손해액 산정 ·················148
제 1 절 개설 ································································································148
제 2 절 손해배상의 범위와 손해액의 입증 ········································150
I. 손해배상의 범위 ··························································································150
1. 배상범위 결정과 상당인과관계 ·····························································150
2. 배상범위에 대한 인과관계의 입증 ·······················································152
3. 배상범위의 결정에 관한 판결례 ···························································152
II. 손해액의 입증과 손해액 인정제도 ························································158
1. 개설 ·············································································································158
2. 비교법적 검토 ···························································································159
3. 우리나라의 경우 ·······················································································164
제 3 절 경제적 증거의 활용 ···································································173
I. 개설 ················································································································173
II. 손해액 추정과 경제적 증거 ····································································174
1. 경제적 증거의 의의 ·················································································174
2. 경제적 증거의 유형 및 특성 ·································································175
3. 경제적 증거의 내용으로서 손해액의 추정 ·········································177
III. 경제적 증거에 대한 규범통제 ·······························································205
1. 개설 ·············································································································205
2. 미국의 경우 - 증거채택의 기준 ···························································206
3. 증거가치 평가와 규범통제 ·····································································216
제 4 절 손해배상책임의 제한 ·································································239
I. 과실상계 등에 의한 책임제한 ··································································239
1. 문제제기 : 고의에 의한 불법행위의 경우 ··········································239
2. 판결의 검토 ·······························································································240
II. 손익상계 등에 의한 책임제한 ································································244
1. 손해전가 항변과 관련하여 ·····································································244
2. 납부한 과징금과 관련하여 ·····································································251
제 5 절 징벌적 손해배상의 문제 ···························································256
I. 개설 ················································································································256
II. 미국의 징벌적 손해배상제도 ··································································256
1. 불법행위 일반에 대한 징벌적 손해배상 ·············································256
2. 독점금지법 위반행위에 대한 3배 배상제도 ·······································257
III. 우리나라에의 도입 검토 ·········································································257
1. 학설 ·············································································································257
2. 판례 및 입법 ·····························································································258
3. 소결 ·············································································································259
제 5 장 요약 및 결론 ·······························································261
참 고 문 헌 ·················································································266
|dc.title||독점규제법상 부당한 공동행위에 대한 손해배상청구||-|
|dc.title.alternative||Damage Claim on Cartel of Antitrust Law||-|
|dc.contributor.AlternativeAuthor||Sun Hee Lee||-|
- Appears in Collections:
- College of Law/Law School (법과대학/대학원)Dept. of Law (법학과)Theses (Ph.D. / Sc.D._법학과)