담합으로 인한 손해액 감정에 대한 제도적 개선방안

Institutional Improvement Measures for Damage Appraisal in Cases of Collusion

The traditional view of experts as mere assistants to judges, with judges having free discretion to evaluate expert results under the principle of free evaluation of evidence, has been challenged in highly specialized and technical cases. This challenge has been particularly evident in antitrust damage claims. This paper argues that experts should not be viewed as mere assistants to judges but rather as collaborators in the pursuit of material truth. Judges can evaluate whether an expert's methodology is contrary to experience or lacks rationality, and this is justified under the principle of free evaluation of evidence. However, the specific content of this evaluation should be regulated by the Civil Procedure Code. Currently, the Korean Civil Procedure Code lacks provisions for the establishment of a cooperative relationship between judges and experts. This paper proposes three specific institutional reforms. ① Establishment of a Statutory Basis for the Judge's Directive Power. Accurate expert results are obtained through a rational and fair expert procedure. ② Substantialization of the Expert Examination Procedure: This would enhance the understanding of judge and the parties of the expert procedure and the detailed components of the expert opinion, and increase the possibility of the parties accepting the expert result through guaranteed opportunities to express their opinions. ③ Establishment of an Opinion Submission Deadline: This would allow for a swift progression of the litigation process by setting a deadline for the submission of opinions on expert results obtained through appropriate and rational ex ante procedural control and applying the doctrine of forfeiture of defenses and objections to parties' objections or opinions submitted after the deadline.