Earticle

초록

영어

Recently a revised provision containing a General Clause(Article 2, Paragraph 1, Subparagraph 10) to the Unfair Competition Prevention and Trade Secret Protection Act has been introduced in Korea. It says that “An act to use the product of significant effort and investment made by a competitor without permission, for one’s own business and in a manner contrary to business ethics or the order of fair competition, and through this to gain unjust profit by taking advantage of the effort and investment of the competitor and violate the competitor’s profit legally entitled to protection”. The purpose of this revision is to seek a proper measure against new and different types of unfair competition. However, the newly introduced General Clause has some characteristics and limitations comparing to the General Clause of Germany or Switzerland. First, it is not a universal but a supplementary characteristics so that our general clause can be applied selectively only to the specific provision listed Article 2, Paragraph 1, Subparagraph. Second, unlike Germany and Switzerland, the purpose of the Act is limited for the protection of competitioner’s interests without regard to the consumer protection or public interests. Third, it’s subject matter is limited to the exploitation of others' achievement among many kinds of general unfair competition acts, which is codified on the Suprem Court’s decision recognized the tort liability. Fourth, the newly introduced General Clause has also limitation in perspective of legal relief. Furthermore, the introduction of the new General Clause require rebuilding a new relationship between Unfair Competition Prevention Act and Antitrust & Fair trade Law that has also its own General Clause. Relationship between Unfair Competition Prevention Act and intellectual property laws, the general tort doctrine also require some reconsideration. This paper deals with the above said characteristics and limitations of the the new General Clause. Furthermore, this paper examines some question and Legal issue caused by the interface between the intellectual property theory and the general tort doctrine and Antitrust & Fair trade Law. Finally, this paper discusses the desirable approach for rebuilding a new relationship between Unfair Competition Prevention Act and Antitrust & Fair trade Law.

목차

I. 서설
  1. 문제의 제기
  2. 연구의 범위
 II. 신설된 일반조항의 입법 취지와 기능
  1. 신설된 일반조항의 입법경위 및 역할에 대한 검토
  2. 일반조항의 통상적 제 기능에 대한 검토
 III. 신설된 일반조항의 성격과 그 위상적 한계
  1. 보충적, 선택적 일반조항
  2. 목적론적 관점에서 한계
  3. 적용 대상론적 한계
  4. 침해 구제론적 관점에서 실현의 한계
 III. 타 지적재산권법 및 다른 부정경쟁행위와의 관계에서 오는 한계
  1. 문제의 제기
  2. 부정경쟁방지법은 지적재산권법의 보충적 적용관계에 있는 것인가?
  3. 지적재산 보호요건을 충족하지 못한 경우의 부방법적용의 문제
 IV. 인접 법제와의 규율대상 조정 및 입법론적 과제
  1. 민법상 일반 불법행위와의 관계 정립
  2. 불공정거래행위와 구별 및 관계 재정립
 V. 결론
 참고문헌
 

키워드

저자

• 김원오 [ Kim, Won-Oh | 인하대학교 법학전문대학원 교수 ]

참고문헌

발행기관

간행물

표지보기 관심저널 등록

• 간행물명

  산업재산권 [Journal of Industrial Property]

• 간기

  계간

• pISSN

  1598-6055

• eISSN

  2733-9483

• 수록기간

  1995~2025

• 등재여부

  KCI 등재

• 십진분류

  KDC 367 DDC 346