공정거래법상 경쟁제한성 요건의 증명방법에 관한 연구

The Monopoly Regulation and Fair Trade Act(‘MRFTA’) prohibits various types of acts and practices which may have an adverse effect on competition. As these legal terms are directly related to economic factors, the courts already well recognize that economic analysis can play an important role in the MRFTA cases. Indeed, the courts make every effort to seek decisions that fall within the boundaries of economically sound knowledge. On the other hand, as judges are not trained economists, they lack the economic training that might facilitate the evaluation of economic claims or the evaluation of economic evidence. In addition, there can be the MRFTA cases in which there are two well-qualified economist experts, each employing standard methodology of economic analysis, but arriving at opposite conclusions. In these circumstance, it is hard for the courts to avoid epistemic arbitrariness in fact-finding reasoning. In order to solve this problem, the courts need to use Daubert rule and/or court-appointed experts. Court-appointed experts can be used to address complex economic evidence where the parties provide dueling experts or fail to present the facts adequately.