공정거래법의 사적집행수단: 국가후견소송(parens patriae action)을 중심으로

This article explores the concept of parens patriae action and analyzes its optimal design as a new private enforcement mechanism of Korean competition law. While other mechanisms such as class action, punitive damage claims and private action for injunction have been actively discussed in the framework of private antitrust enforcement, surprisingly few studies have been conducted on the issues addressed by parens patriae action. Enabling state attorneys general to seek for monetary damages on behalf of the citizens, the parens patriae action in the United States is considered as a greater protection mechanism for small consumers. The distinctive feature of simplifying the problem of measuring and distributing damages makes parens patriae actions noteworthy compared to class actions. The key issue is how to design the parens patriae action in the context of Korean litigation system in order to maximize its merits while minimizing any possible side effect. This article seeks the answer in three aspects. The first aspect is designing the requirements for filing the suit in line with the legislative purpose of parens patriae action. Ongoing discussions in the United States on restriction of the “standing” requirement in reaction to the abuse in parens patriae action have important implications. The second aspect is designing the procedure in detail, which raises issues such as whether the KFTC or MOJ shall perform the litigation and how to design notification hurdles or opt-out options. The third matter is the damages: the scope, demonstration and distribution. If legislated with in-depth attention to the addressed issues, the parens patriae action may be a valuable tool in the field of private antitrust litigation.