비시장경제 상품에 대한 상계관세 부과와 관련한 WTO 체제에서의 법적 쟁점 연구: 미국-중국 간 WTO 분쟁 중 공공기관 및 시장기준의 문제를 중심으로

This paper addresses the issues of public body and market benchmark that may occur in the process of subsidy investigations. For this purpose, it carefully examines the reasoning deployed by the panel and the Appellate Body in the US-China dispute over the US' countervailing duty imposed on certain products from China. In 2007, the United States reversed its long-standing policy of not imposing countervailing duties on products from NME and imposed countervailing duties on four products from China. China brought a case against the US challenging the determination of Department of Commerce. While the WTO panel rejected China's claim on "public body" by interpreting the term as "any entity controlled by a government," the Appellate Body reversed the panels' ruling. The Appellate Body interpreted the term to mean "an entity that is vested with governmental authority to exercise governmental functions." On the issue of benchmark to calculate benefit, both the panel and the Appellate Body found that an out of country benchmark can be used when the investigating authority establish that the domestic private prices are distorted because of the predominant role of the government in the market as a provider of the same or similar products. However, the Appellate Body failed to provide clear definition of terms such as "governmental authority" and "governmental functions." Nor did it provide sufficient guideline that investigating authorities can refer to when they conduct subsidy investigation. Therefore, the Appellate Body, in fact opened the door for further disputes involving public body and market benchmark.