공정거래법상 손해배상청구소송에 있어서의 경제분석에 관한 연구

Abstract

The antitrust damage suit is an important tool for the implementation of antitrust laws. It lessens the burden of competition authorities and provides the compensation for damages incurred by private parties. However, antitrust damage suits are not sufficiently activated outside the United States. The lack of economic analysis in court is one of the main causes of such deactivation. Economic analysis is essential in proving two major issues of antitrust damage suit: the amount of damage and the causal relationship between the violation of the dependant and the damage incurred by the plaintiff. Without economic analysis, it could be very hard to identify various factors that caused plaintiff’s damage and appreciate the relative importance of such factors. Thus it is highly recommended that economic analysis should be facilitated in antitrust damage suits. The US courts developed two useful principles concerning the economic analysis in antitrust lawsuit. First, the principle of “speculative” antitrust damages rejects insufficient proof which could not provide the basis for just and reasonable inference of damages. Second, the Daubert test rejects expert testimony based on theories which are not generally accepted among economists. These tools are useful in filtering insufficient or biased economic analysis in antitrust damage suit, and, after some modification, could be imported into Korea. Despite the importance of economic analysis in antitrust damage suit, it will take some time for Korean judges to prepare for the task. Thus the help from civilian experts is crucial. In the short term courts should play a leading role in utilizing expert opinion, as Korean Civil Procedure Act allows only the court to summon experts. However, in the long run, the parties should also be allowed to call for experts.