일본 JASRAC 판결의 소개와 시사점 – 제3자의 원고적격을 중심으로

Recently, in the JASRAC(Japanese Society for Rights of Authors, Composers, and Publishers) cases, Japanese courts ruled to the effect that third party can have the standing to sue for annulment the decision of the Japanese Fair Trade Commission(JFTC). These cases are significant because the issue of the third party standing to sue in the competition law proceedings has not been subject to extensive judicial review or academic discussion in Japan, and the issue also has a significant implication for the sound development of competition law enforcement in Korea. The complainant in the JASRAC case(e-License) was not the respondent of the JFTC decision, but the sole competitor of the JASRAC which was harmed by the exclusionary conduct of the JASRAC. After the JFTC rescinded its cease-and-desist order against JASRAC, the e-License, although it was a third party concerning the proceeding, filed an action for the annulment of the JFTC decision to the Tokyo High Court. Tokyo High Court, whose judgment was later upheld by the Japanese Supreme Court, extensively discussed the issue of third-party standing to sue then recognized the standing to sue of the e-License. This article will closely examine the reasoning of the Japanese courts, and discuss whether the third party should have the standing to sue for the annulment of the KFTC decision from the various perspective. JASRAC judgment of the Tokyo High Court is notable in two respects. The court interpreted the various provisions in the Japanese Antimonopoly Act protect not only the public interest to promote competition but also the private interest of the competitor to engage in fair and free competition. And to address the concern for the abusive litigation, the court provided the limiting principle on the scope of the third-party standing, which requires the directness and significance of the harm to the competitor. It is similar with the reasoning of the Korean Supreme Court the demands for the third party to file administrative litigation to suffer from harm to the individual, direct and specific interest, although not about competition law case, This article will explore whether it is necessary to allow the third party to appeal in the competition law proceeding to supplement the deficiency of the public enforcement and to overcome the limits of the private enforcement. And it will examine from the perspective of remedial balance, if the respondent in the KFTC decision can appeal to the court, a competitor who is the victim of the anticompetitive conduct should have the opportunity to appeal to the KFTC decision to restore competitive process and to get the injury relieved.