公正去來法分野에 있어 美國의 父權訴訟(Parens Patriae Action)에 대한 硏究

The plain meaning of "parens patriae" is "parent of the country." This concept is derived from the English common law, under which the king undertook to protect and act for minors and incompetents. The crown's parens authority grew out of the sweeping common-law theory of "royal prerogative" by virtue of which he or she had authority over almost everything. In America, under parens patriae doctrine, a state can sue on behalf of some or all of its citizens to prevent or repair harm to its quasi-sovereign interests. A parens patriae suit is different from a class action in that the former is to allow a state to bring an action on behalf of its citizen while the latter is to permit one or some class members to sue on behalf of a class. In terms of antitrust violations, prior to 1976, several courts upheld that a state lacked parens patriae authority to seek damages on behalf of its citizens, allowing its attorneys general only to seek injunctive relief on behalf of the general economy of the state. The Hart-Scott-Rodino Antitrust Improvements Act of 1976 (hereinafter referred to as "HSRA") empowers state attorneys general to act as parens patriae on behalf of their citizens in federal antitrust actions that seek monetary relief. In this regard, this Article explores the legislative history of the HSRA, its main procedural sections, which establish requirements with respect to proof of damages, notice, and distribution of damages, and its current development. In addition, this Article examines an Act that empowers the U.S. Federal Trade Commission to bring an antitrust action in a parens patriae capacity. It is Magnuson-Moss Warranty-Federal Trade Commission Improvement Act. Following the detailed description of the statutory solution to the problems arising out of the common law antitrust parens patriae cases, this Article examines the transplantability of American parens patriae doctrine into Korea.