담합으로 인한 손해배상액의 산정에 관한 경제학적 분석방법 및 규범적 통제

The quantification of antitrust damages inevitably includes “uncertainty” since it premises non-existing situation. This presumption imposes the burden of proof on plaintiffs, which prevents victims of antitrust from receiving proper compensation. To solve this problem, Korean Supreme Court recently emphasizes the active application of article 57 of Korean Antitrust law-which is to lessen the burden of proof on antitrust victims- on quantifying antitrust damages, in the recent “Diesel Antitrust Case”. In this case, the Supreme Court states that the quantifying antitrust damages itself can be valid prerequisite of applying the article 57, because of its intrinsic ‘uncertainty’. Also, the Supreme Court declares that assessing antitrust damages should not merely rely on econometrics method–which has been mistaken for the only correct answer towards assessing antitrust damages-, but it should make the most of other various economic methods to prove damage assessment. According to the Supreme Court’s decision, it will be impossible to dismiss antitrust victims’ lawsuits, for being failed to prove damages assessment, even though the act of antitrust has been proved. To assess damages, there are numerous economic methods, such as before-and-after comparison method, yardstick method, cost-based method, econometrics method and so on. Among those, econometrics method has been widely used, since it has been considered to be an efficient methodology to extract the sole impact of antitrust act on price raise from other price-decisive factors. However, as other methods could be widely utilized to quantify damages, both parties in antitrust damages trials are likely to present diverse economic evidence and methods to maximize or minimize antitrust damages depending on their own interest, all of which have its own validity. Therefore, the court’s proper control on each methods becomes crucial. First of all, courts should pay attention to each methods following ‘court’s procedure control model’, specifically consisted of ‘relevance and reliability of data’, ‘testability of hypothesis’, ‘availability of test of errors’ and so on. Also, if more than two methods meet the requirement of procedure control, courts should evaluate each method’s hypothesis and relevance to make a decision on what method is the most appropriate method to quantify damages. In conclusion, the court’s control on quantifying damages will become the most important matter. However, courts must ensure that its intervention in the process of control should not inflict essential changes on the results of economic methods.