相計關稅 調査에 있어 外國 政府의 自國 金融機關에 대한 "委任 및 指示(Entrustment or Direction)"에 관한 考察 : 미국 통상법과 미 상무성 실무를 중심으로 = An Analysis of "Entrustment or Direction" in a Countervailing Duty Investigation under the U.S. Trade Law

다국어 초록 (Multilingual Abstract)

Unlike any other unfair trade investigations, a countervailing duty("CVD") investigation is quite intrusive since, by nature, the core of the CVD investigation is to review a foreign government's practice and policy. Such intrusiveness is particularly evident when the investigation is focused on a so-called "indirect" subsidy, where the focus of the investigation is not a specific, visible provision of an illegal subsidy, but rather the financial or social system of a country in general.
"Entrustment or direction" provision contained in Article 1.1 of the WTO Agreement on Subsidies and Countervailing Measures("SCM Agreement") is introduced to address this highly volatile "indirect" subsidy issue, and the application of that provision in actual CVD investigation inherently invites confusion and conflicts. The "entrustment or direction" provision is designed to deal with a situation, where a foreign government "entrusts or directs" a private entity in its own country to provide financial contribution to a foreign company, thereby conferring an indirect subsidy on the company.
The "entrustment or direction" provision in the U.S. trade law was adopted in conformity with the WTO SCM Agreement, and has suddenly become the focus of the bilateral trade relation in the aftermath of the recent CVD investigations against the Korean DRAM industry. Since the U.S. Department of Commerce("Commerce Department") has a great deal of discretion in a CVD investigation under the U.S. law, an analysis of "entrustment or direction" is also subject to the Commerce Department's wide discretion.
The basic problem with this provision lies in the ambiguous and subjective nature of the inquiry. WTO jurisprudence states that the "entrustment or direction" by a government does not simply mean that a government merely intervenes in the financial market or encourages certain actions. Rather, it requires an affirmative action on the part of the government. This rule also apply in the U.S. law. Relevant U.S. statutes and the Commerce Department's own interpretation also agree that there must be some sort of concrete action on the part of a foreign government to trigger a subsidy finding under this provision.
In reality, however, the Commerce Department significantly relies on circumstantial evidence gathered through second-hand sources, rather than direct evidence showing an affirmative government action. In other words, instead of showing "entrustment or direction" based on direct evidence, as required under the U.S. law, the Commerce Department sometimes collects indirect evidence and presents a "silhouette" of the government entrustment and direction.
Needless to say, it is true that it is not easy for the Commerce Department to get access to direct evidence, which can prove a foreign government's affirmative direction of the private entities in its own territory, since such evidence is usually located in the foreign country. Nonetheless, under the law, the Commerce Department has the obligation to present direct evidence to prove "entrustment or direction," in addition to indirect or circumstantial evidence. This is a reasonable burden on the Commerce Department given the ambiguous and intrusive nature of the "entrustment or direction" inquiry.
This "affirmative evidence" principle is also supported by the jurisprudence of U.S. federal courts in the judicial review of Commerce Department determinations. Although the U.S. federal courts usually respect a decision of an agency, which falls under the jurisdiction of the agency, under the so-called "substantial evidence" standard, that standard does not mean that the reviewing federal court should uphold any agency determination simply because the agency provides "some" evidence to support its decision. Rather, the substantial evidence rule means that the reviewing federal court should determine whether the agency decision can be supported "through a balanced review of the whole materials and evidence on the record." Put differently, a selective review of one category of evidence does not meet even the highly deferential "substantial evidence" standard of the U.S. federal court. Although it varies case-by-case, mere accumulation of circumstantial evidence without direct evidence, coupled with equal amount of conflicting circumstantial evidence and even direct evidence, usually cannot survive the "substantial evidence" standard.
At the same time, under the U.S. law the Commerce Department has the obligation to affirmatively prove the existence of the three elements of a subsidy: financial contribution by a government, benefit, and specificity. However, in the actual investigation, the Commerce Department sometimes imposes the burden of proof on the respondent government or company, asking them to prove "absence" of any of the elements. The shift of burden of proof not only creates a significant burden on the respondent government and company, but also its legitimacy is highly questionable, because the statutes and regulation collectively show that it is the Commerce Department that has to prove the existence of the elements.
Comprehensive and accurate understanding of the U.S. trade law would provide a potent weapon for the Korean government and companies in defending their interests in future CVD investigations by the Commerce Department involving "entrustment or direction" by the Korean government.

목차 (Table of Contents)

• Ⅰ. 序論
• Ⅱ. 本論
• 1. 美 通商法下 相計關稅 調査의 特徵
• 2. 美 通商法 規定上 政府에 의한 "委任 및 指示"
• 3. 美 通商法 "委任 및 指示" 條項의 具體的 適用
• 4. "委任 및 指示"에 관한 立證責任
• 5. 間接證據에 기초한 "委任 및 指示" 존재여부 판단과 Substantial Evidence 原則
• Ⅲ. 結論-向後 展望 및 示唆點
• 1. 餘他 債務再調整 조치에 대한 相計關稅 조사
• 2. WTO 補助金 協定 改正 協商의 積極的 參與
• 3. 金融市場 改革 및 그 成果에 대한 國際的 弘報의 强化