경쟁법 사건절차상 경제전문가 증언의 활용에 관한 연구

초록

The role of economic expert witness testimony in competition law proceedings has been rapidly increasing, both globally and domestically. This trend comes with an increase in private litigations for damages on the basis of violations of competition laws in particular. The economic expert witness testimony may play a significant role in establishing almost every element of competition law violations as well as proving causation and amount of damages in private competition law litigations. This may greatly contribute to the improvement of competition law enforcement by means of so-called the 'effects-based approach'. However, concerns regarding the quality and integrity of economic expert witness testimony have been raised. Some economic expert witness testimony produced at court proceedings or administrative proceedings of the Fair Trade Commission('FTC') is confusing and cannot help judges and the commissioners who lack expertise in econometrics. In addition, a few experts even show tendency to abandon objectivity and become advocates for the party who hired them. These negative sides of increasing use of economic expert witness testimony in competition law proceedings may undermine the effectiveness and conformity of competition law enforcement with the modern competition policy goals-'protection of efficiency and consumer welfare'. The current provisions in the Korea Monopoly Regulation and Fair Trade Act and relevant decrees and notices cannot provide sufficient protection against those problems. Also, court practices and law enforcement practices at the FTC in competition law proceedings show lack of clear recognition of those issues. One the other hand, the United States has well-developed evidence law on expert witness testimony and procedural measures for screening out irrelevant or unreliable expert witness testimony. In addition, a series of court decisions including the Supreme Court's Daubert judgement may provide useful guidance for evaluating expert testimony. Some suggestions may be made for maintaining quality and integrity of economic expert witness testimony in competition law proceedings, both administrative and judiciary. Introduction of gate-keeping function on economic expert witness testimony and protective procedural measures against irrelevant or unreliable testimony is suggested. More use of the neutral economic experts payed by the public fund is also desirable. Building and strengthening economic analysis capacity of the FTC is one of policy priorities as well.

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