Research Report
Ⅰ. Background and Purpose
○ In recent years, as the people's desire for economic democratization and fair economic order has increased, interest and demand for the role of the Fair Trade Commission has increased.
- However, in a situation where the number of reported cases of fair trade events is rapidly increasing by about 4,000 cases per year, the Fair Trade Commission is experiencing a problem that it can not deal with all reported cases due to limited resources and manpower.
○ Even if there is an unfairly taking advantage of one's position in trade, if the Fair Trade Commission does not account for it, it cannot be relieved by the current fair trade law enforcement system, it is not easy for a private person to receive relief through direct litigation by means of civil remedies such as the right to claim for damages.
Ⅱ. Main contents
▶ Status Fair Trade Law Enforcement System and Necessity of Improvement
○ Although the number of reports to the Fair Trade Commission has increased rapidly every year on the unfairly taking advantage of one's position in trade due to the increase in people's sense of law, with the Fair Trade Commission's limited manpower and resources, it is almost impossible to process all cases quickly.
○ There is also a way for a person to file a direct claim for damages, but in this case, it is difficult to prove the damage caused by the violation and the occurrence of the damage.
- Since there are many cases in which damages actions are neglected or the liability of the business is lightly accepted and due to the low expectations on the outcome of the litigation, there is a continuing case of abandoning civil relief in the first place.
○ 'The Parens Patriae Action' in the United States and the 'Korean Discovery System' introduced in our patent law in 2016 are needed to be introduced into our Fair Trade Act in order to eradicate unfair trade practices and to provide quick relief for victims.
▶ Parens Patriae Action Introduction for Antitrust Case
○ Significance of Parens Patriae Action
- Parens Patriae Action is a lawsuit filed by the State on behalf of all citizens in cases involving "quasi-sovereign interests" such as civil health, welfare, human rights, safety, environment, fair trade, consumer protection.
- In Parens Patriae Action, the State issues damages actions on behalf of the victim and if win the case, assigns compensation to the victims who have not applied for opt-out, or to the state treasury.
○ Parens Patriae Action in the US Anti-Monopoly Act
- In the United States, the Parens Patriae Action is recognized by the Common Law, so even if there is no legal basis, the State will raise a Parens Patriae Action for all citizens if there is a "quasi-sovereign interest". However, such Parens Patriae Action is only recognized under strict requirements.
- In order to enable treble damages to be activated in antitrust cases, the US Congress amended the Clayton Act in 1976 to establish the basis for the Parens Patriae Action in violation of the Sherman Act in Article 4C.
· Unlike the Parens Patriae Action under the normal law, the Parens Patriae Action under the Clayton Act allowed the State Government to file a Parens Patriae Action against a claim for damages that could be raised as a class action.
○ In case of introducing the Parens Patriae Action in addition to the class action lawsuit in Korea, it is necessary to introduce Parens Patriae Action only in case of damage to many consumers or victims.
- Parens Patriae Action needs to be acknowledged only on the basis of 'the effect on the economic order of the whole country' or 'public interest', similar to the 'sub-national interests' required as a requirement for permitting the Parens Patriae Action in the United States.
▶ Introduction of Korean Discovery System for Antitrust Case
○ Significance of Korean Discovery System
- Article 132 of the amended Patent Act, which came into effect on June 30, 2016, limits the number of persons who can view the documents to ensures the confidentiality at the same time, if it is not complied with the order to submit the court documents without justifiable reasons, the claims of the plaintiff can be quoted as it is.
- And even corporate secrets, if it corresponds to the data required for the calculation of the damage amount, it is obligatory to submit it in effect.
○ Overseas Discovery System
-Discovery System under the US Federal Rules of Civil Procedure
· The US Discovery System is defined in the Federal Rules of Civil Procedure Title V, Rule §§ 26-37, a separate discovery process, separate from the main litigation, requires all relevant evidence to be disclosed.
· It is not limited to a patent litigation, but is a common system applied to all civil proceedings, seeking ease of evidence acquisition and fairness by securing access to evidence or information.
- Documents submission order system under the Japanese Patent Act
· The Japanese Patent Act stipulates a document submission order system as a special rule for the Civil Procedure Act, the plaintiff's claim regarding document writing can be regarded as true by the opponent's penalty for impermissibility.
- Information and documents provision system under the German Patent Act.
· Under the German Patent Act, patent holders may request infringers to submitproduct sources, sales channels, financial data, and various transaction data if necessary to demonstrate infringement of patents. If a patent infringer does not provide information completely or intentionally, the patentee shall be liable for damages.
○ Introduction of Korean Discovery System for Antitrust Case
- In case of Antitrust Case, it is difficult for the victim to prove the existence of damage and the amount of damages due to the bias of the evidence possessed by the most of the evidence.
· Accordingly, the introduction of the Korean Discovery system similar to Article 132 of the Patent Act necessitated the other party's business operator to submit the necessary data to prove the damage.
- In the case of adopting a Korean discovery system in Antitrust Case, it is possible to think about the method of inserting a separate clause next to the liability for damages provisions or the clause of liability for damages in each individual law such as Monopoly Regulation and Fair Trade Act, Fair Transactions in Subcontracting Act, Fair Transactions in Franchise Business Act, Act on Fair Transactions in Large Franchise and Retail Business, Fair Agency Transactions Act, Act on Fair Labeling and Advertising, Product Liability Act, etc.
Ⅲ. Expected benefits
○ The introduction of the Parens Patriae Action system in the Antitrust Case where damage to many consumers or victims can be used to help private relief.
○ The introduction of the Korean Discovery System on Monopoly Regulation and Fair Trade Act and Fair Transactions in Subcontracting Act, Fair Transactions in Franchise Business Act, Act on Fair Transactions in Large Franchise and Retail Business, Fair Agency Transactions Act etc. can help to prove damages in private damages actions.