독점규제법상 부당한 공동행위에 대한 손해배상청구권의 소멸시효 (Prescription of the right to claim damages from cartel)

서지정보

· 발행기관 : 한국민사법학회
· 수록지 정보 : 민사법학 / 70권 / 307 ~ 346페이지
· 저자명 : 이선희

초록

Not a few cartels last for a considerable period of time compared with other torts. For one example, a corporation continues to carry out price fixing which comes from a collusion with other corporations for substantial amount of time. For the other example is that, by the result of construction bid-rigging, successful bidders construct and get paid over a period of time.
Our civil law has 3-year short-term subjective imitation and 10-year long-term objective limitation. In applying the former one, it is important to confirm when the injured party becomes aware of damages resulting from an unlawful act and of the identity of the person who caused it. In applying the latter, it is notable that a limitation does not run until the unlawful act was committed, namely the accrual of injury.
Especially when the illegal act repeats or continues and the damages of it also continue to happen, it is very difficult to determine whether the limitation should wait to commence until a continuous or repeated infringement ceases. Recently, some cases dealt with such issues in our courts, even though supreme court decisions did not come out yet. To review these cases, I studied examples of legislations of other countries's in both civil law and antitrust law, court cases and theories of scholars. Aided by "continuous tort theory", I propose some opinion in view of application of law and legislation.
In dealing with cases of prescription, we must give victims of a tort a reasonable opportunity to bring a damages action, while ensuring an appropriate level of legal certainty for all parties involved. Good faith principle in application of existing law can help to get a reasonable solution dealing with fraudulent concealment and pendency of government action. Introduction of suspension system which other countries have can be regarded, too.

영어초록

Not a few cartels last for a considerable period of time compared with other torts. For one example, a corporation continues to carry out price fixing which comes from a collusion with other corporations for substantial amount of time. For the other example is that, by the result of construction bid-rigging, successful bidders construct and get paid over a period of time.
Our civil law has 3-year short-term subjective imitation and 10-year long-term objective limitation. In applying the former one, it is important to confirm when the injured party becomes aware of damages resulting from an unlawful act and of the identity of the person who caused it. In applying the latter, it is notable that a limitation does not run until the unlawful act was committed, namely the accrual of injury.
Especially when the illegal act repeats or continues and the damages of it also continue to happen, it is very difficult to determine whether the limitation should wait to commence until a continuous or repeated infringement ceases. Recently, some cases dealt with such issues in our courts, even though supreme court decisions did not come out yet. To review these cases, I studied examples of legislations of other countries's in both civil law and antitrust law, court cases and theories of scholars. Aided by "continuous tort theory", I propose some opinion in view of application of law and legislation.
In dealing with cases of prescription, we must give victims of a tort a reasonable opportunity to bring a damages action, while ensuring an appropriate level of legal certainty for all parties involved. Good faith principle in application of existing law can help to get a reasonable solution dealing with fraudulent concealment and pendency of government action. Introduction of suspension system which other countries have can be regarded, too.

참고자료

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