담합·불공정거래 손해배상 소송 현황 및 개선방안 - 왜 국내에는 징벌적 손해배상 사례가 없는가 (Lawsuit against Cartel and Unfair Trade – Why there is no punitive damages case in Korea?)

서지정보

· 발행기관 : 한국경쟁법학회
· 수록지 정보 : 경쟁법연구 / 41권 / 464 ~ 490페이지
· 저자명 : 전승재

초록

In the field of fair trade, punitive damages have been introduced in the Subcontracting Act, which is a special law of unfair trade practices, and have recently been enacted for cartels. However, despite the fact that the Subcontracting Act has been operating for punitive damages for more than 15 years, there have been only few cases where actual judgments have been made based on this (there seems to be only one case of a lower court ordering a 1.5 multiplied compensation). The punitive damages provisions related to the cartel are also expected to be rarely applied in the future.
The reason is as follows. First, in Korea, the system of classifying civil and criminal liability, that is, retribution for violations of law is punished by the government, and the damages is compensated by a civil lawsuit. Therefore, imposing liability in excess of actual damages instead of punishment is not familiar in Korea.
Second, in cases where law enforcement is heavily dependent on the administrative measures of the Fair Trade Commission, the total amount of liability may be excessive if a punitive damage is imposed on a law violator who has already received punishment such as fines. Therefore, civil courts are reluctant to make judgments to compensate for damages in excess.
Third, in the cartel sector, especially in the bid rigging sector, the benefits are concentrated on 'powerful buyers' such as the government, public institutions, and large corporations, while consumers who lack the ability to carry out lawsuits do not enjoy the benefits, and the polarization phenomenon is aggravated. It is also likely to deepen the imbalance in law enforcement between bid rigging and other types of cartels.
This paper points out the problems of the current punitive damages system based on the cartel and Subcontracting Act and proposes measures for improvement.

영어초록

In the field of fair trade, punitive damages have been introduced in the Subcontracting Act, which is a special law of unfair trade practices, and have recently been enacted for cartels. However, despite the fact that the Subcontracting Act has been operating for punitive damages for more than 15 years, there have been only few cases where actual judgments have been made based on this (there seems to be only one case of a lower court ordering a 1.5 multiplied compensation). The punitive damages provisions related to the cartel are also expected to be rarely applied in the future.
The reason is as follows. First, in Korea, the system of classifying civil and criminal liability, that is, retribution for violations of law is punished by the government, and the damages is compensated by a civil lawsuit. Therefore, imposing liability in excess of actual damages instead of punishment is not familiar in Korea.
Second, in cases where law enforcement is heavily dependent on the administrative measures of the Fair Trade Commission, the total amount of liability may be excessive if a punitive damage is imposed on a law violator who has already received punishment such as fines. Therefore, civil courts are reluctant to make judgments to compensate for damages in excess.
Third, in the cartel sector, especially in the bid rigging sector, the benefits are concentrated on 'powerful buyers' such as the government, public institutions, and large corporations, while consumers who lack the ability to carry out lawsuits do not enjoy the benefits, and the polarization phenomenon is aggravated. It is also likely to deepen the imbalance in law enforcement between bid rigging and other types of cartels.
This paper points out the problems of the current punitive damages system based on the cartel and Subcontracting Act and proposes measures for improvement.

참고자료

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