市場歪曲行爲로부터의 消費者 保護

The Liabilities for Tort on Consumer Welfare

The issue on liabilities by infringing consumers welfare on tort law has important meaning in capitalism. So anti-competitive practice has been regulated by application of special statutes, such as antitrust law. But, these special statutes are insufficient to cover all the matters of anti-competitive practice. Rather, competitive injury should be fallen under the control of civil law. This study attempts to solve the problem on the liabilities on tort law, in particular, measuring the damages of consumers. It is hard work that calculating the consumer damages by unfair competition. To solve that problem, courts have usually depended on “yardstick or “before-and-after method. The yardstick method calculates damages by comparing the price plaintiff paid to the prevailing price in some different but similar market in which anti-competitive practice at issue is not occurring. The before-and-after method compares the plaintiff s price to those prevailing in the same market prior to and subsequent to the violation period. On the other hand, there is another tremendous difficulty in determining accurately indirect purchasers damages. The direct purchaser, however, may collect the entire amount of any overcharges, even if he/she has passed on some of the overcharges to downstream, so the indirect purchasers are required to prove the proportion of an overcharge passed on to them. This study suggests that some notes including Hovenkamp s insistence should be considered importantly in Korean civil law.