부당한 공동행위에 대한 손해배상청구에서 손해전가항변과 책임제한

For the first time, the Supreme Court delivered its opinion about passing-on defense in the Flour Cartel case in 2012. Compared to the Military Fuel Bid-Rigging case in 2011, the Flour Cartel case is simpler in the structure of cartel, methods and techniques for quantifying damages but shares some issues such as the definition of damage and the principles of damage estimation and deals with passing-on defense in addition. This article introduces the decisions of the first instance, appellate, and supreme courts in Flour Cartel case and reviews the meaning of them. In particular, it focuses on passing-on defense in relation to offset of profits and losses and liability restriction. Direct customers of the cartel infringer who pay an overcharge caused by the cartel may themselves sell the affected products or use them as input for their own production of other goods or services. In the Flour Cartel case, the baking company is the direct customer of the infringing undertakings and it uses the purchased flour to bake bread, which it then sell either directly to end-consumers or to supermarkets. This direct customer, reacting to the price increase it faces, may raise the price for the bread it sells, thereby passing on some or entire initial overcharge to its own customers. In an action brought by the direct customer claiming reparation for the initial overcharge paid by him, the defendant cartel infringer might argue that the direct customer should not, in fact, be compensated for the overcharge harm to the extent that he raised his own prices and thus passed on the overcharge. This is commonly referred to as the “passing-on defense”. This case deals with whether the passing-on defense is permitted and what its implications are, such as whether a pass-on overcharge affects the accrual of harm and the quantified pass-on can be deducted. The Supreme Court said that for offset of profits and losses, this case lacks causality between price rise of the flour and the decrease or recovery of baking company's harm. However, for the sake of equity, such as avoiding double-counting of damages suffered by purchasers along different levels of the supply chain, the Supreme Court took passed-on damages into account. Such judgment accords with revised German competition law and EU's trend of dealing with “damages actions for breach of the EC antitrust rules”, as well as exceptional grounds which Hanover case of USA presumed. The appellate court had a different opinion about dealing with “dummy variables after cartel” in damage estimation by way of regression analysis compared with the first instance court but oddly awarded the same amounts of damages without specifying the comparative ratios of different factors which restrict the defendant's compensation liability. Nevertheless, the Supreme Court affirmed the appellate court's ruling on the grounds that the way to restrict the defendant's compensation liability in torts is up to the trial court's exclusive authority. Such decisions of the appellate and Supreme Court are problematic for several reasons: as to what extent different factors may restrict the defendant’s compensation liability is left un explained, parties concerned are left to wonder how much of their argument was accepted by the court. Moreover, such ambiguous nature of the decisions cannot serve as helpful examples for other cases. Regardless, this case is worthy of attention as the leading case on passing-on defense.