한국 경쟁법의 사적 집행제도의 개요와 향후 발전방향

The word “private enforcement of antitrust law”, originated from U.S., is usedto emphasize on effective functioning of civil remedies by giving incentives toprivate parties’s bringing civil suits, in contrast with the public enforcementby administrative or criminal agencies. From the U.S. examples, we can infer that ideally effective private enforcementof antitrust law means to recover harm by damage compensation orinfringement suspension - sometimes by way of detecting antitrustinfringement which public enforcement agencies with limited material andhuman resources cannot detect -, to prevent future antitrust violation and topunish antitrust infringements, as well. From the U.S. perspective, Korea’s antitrust private enforcement system seemsto leave much to be desired. Even though Korea’s antitrust damage claimsystem has been improved by 2004 amendment of the Monopoly Regulationand Fair Trade Act (MRFTA) in favor of antitrust victims and damagesclaims caused by antitrust infringements are increasing in court’s docketsrecently, treble damages and the class action as well as injunctive relies arenot legislated yet. Moreover, in present system of damage claims, difficultiesin proving and determining precise amount of damages remain obstacles tosatisfactory compensation which can be an incentive to bring private suits. Soprivate suits are incapable of functioning punishment and insufficient infunctioning recovery and deterrence. In recent years, there has been much interest in antitrust private enforcement inacademia and practice. Several draft bills for revision of MRFTA have beensubmitted to adopt punitive damages, class action and injunctive reliefs. There are much arguments for and against these adoptions. In my opinion, introduction of new systems must be consistent with our legal system and overall social perceptions. From this viewpoint, I cautiously agreeon introductions of the class action and injunctive reliefs but I am a littleskeptical of punitive damages. Besides, regarding punitive damages, functionof punishment seems not always necessary to antitrust private enforcement. If recovery functions well, prevention will go with it. Punishment is somekind of means to prevent antitrust violations. In order to vitalize antitrustdamage claims, it would be better to focus on satisfactory compensation byrelieving burdens to prove and determine precise amount of damages ofplaintiffs and courts as well. In conclusion, development of private enforcement must be pursued in directionto enhancing the overall strength of antitrust enforcement by fulfillingfunctions of recovery and deterrence in private civil suits, stimulating andcomplementing public enforcement.