공정거래법상 징벌적 손해배상 제도 도입에 대한 비판적 검토

The enforcement system under the Korean competition law is characterized as the one centered on the Korea Fair Trade Commission(the“KFTC”) in which the KFTC plays a leading role while it is a dual system mixed with public and private enforcement. Discussions on private enforcement have been developed around issues of whether and how to activate private enforcement for improving the current system. When viewed as a deterrence mechanism, the enforcement system relying heavily on the administrative enforcement by the KFTC does not seem to suffice to achieve the optimal level of enforcement. Private enforcement in the form of actions for an injunction and/or damages can therefore be an important complement to the public counterpart. However, compensatory damages action, the only private enforcement means in Korean competition law, falls short of expectation to perform such function. A lot of suggestions have been made to address this problem. Introduction of punitive damages is also discussed regardless of the contextual issues relating to its compatibility and harmonization with the Korean legal system. In this regard, it should be clearly recognized that the introduction of punitive damages in Korean competition law be critically reviewed within limitations of the difference in the legal system. Against this background, this study aims to give the reasoning for the inappropriateness of the introduction of punitive damages in Korean competition law and to present realistic alternatives for improving private enforcement system. For this purpose, this study reviews U.S. system and operation of treble damages claim and EU’s experience of improving the private enforcement including the policy choice regarding whether to introduce the possibility of doubling damages.