가격담합에 대한 불법행위책임 소고(小考):간접피해자의 손해배상청구와 이른바 손해전가(損害轉嫁)의 항변을 중심으로

According to the Korean Supreme Court (the decision rendered on November 29, 2012,2010Da93790), participants of price-fixing cartel, which deems to be illegal in violation of article 19 of the Korean Monopoly Regulation and Fair Trading Act, cannot effectively invoke a so-called passing-on defence in the cartel civil liability (damages) action that direct purchasers (victims) bring against them, because no adequate or proximate causal link exists between the price-fixing and the losses reduced by passing-on. This argument is, however, logically or doctrinally flawed because there is undoubtedly an adequate or proximate causal link between them. In addition, this argument might lead to blocking indirect purchasers' claim as well, which can never be recommended from policy perspective. Although the Korean Supreme Court, instead, empowered lower judges to reduce the amount of award discretionally, this mechanism cannot substitute the passing-on defence fully. There remains, of course, a possibility to justify blocking indirect purchasers' claim (offensive passing-on) as well as passing-on defence by interpreting that it would facilitate to deter price-fixing cartel, which is the purpose of article 19 of the Korean Monopoly Regulation and Fair Trading Act. This argument, which the U.S. Supreme Court adopted in Hanover Shoe and Illinois Brick cases and famous law and economists Landes and R. A. Posner also supported, is flawed again because there is no reason to believe that blocking indirect purchasers' claim as well as passing-on defence is more effective in deterrence and less costly in law enforcement than allowing both while there is some reason to believe that the former is much worse in compensation than the latter. From comparative law perspective also, the latter alternative seems to be supported in more and more jurisdictions, the most important evidence of which is the so-called ORWI decision rendered by the German Supreme Court.