부정경쟁방지법상 형사 판결에서의 영업주체 혼동행위판단에 관한 비판적 검토

Abstract

Article 2, (1) (Na) of the Unfair Competition Prevention Law provide the basic context for an act of causing confusion as an indication of another person’s business. According to Article 2, (1) (Na) of the Unfair Competition Prevention Law, unfair competition act means an act of causing confusion with another person’s commercial facilities or activities by using signs identical or similar to another person’s name, trade name, emblem or any other sign widely known in the Republic of Korea as an indication of another person’s business. In the situation of occurrence of many criminal cases violating the Unfair Competition Prevention Law regarding the above act, the courts have made a lot of judgement accepting an act of causing confusion as an indication of another person’s business. However, we can see that parts of the above decisions have overlooked general consumer’s recognition and practical business relationship or have stretched the meaning of existing legal principles regarding application of the above act. Especially, Supreme Court 2008Do7462 decision regarding parallel import and an act of causing confusion as an indication of another person’s business, are criticized for overlooking practical business relationship regarding parallel import by theories. Therefore, the courts should determine causing substantive confusion as an indication of another person’s business by considering the situation of this business when they handle future cases similar to this case. And the Supreme Court shall suggest concrete principles of law to be applied to this case reasonably. On the other hand, Supreme Court 2001Do2732 decision regarding election polling and an act of causing confusion as an indication of another person’s business, are reasonably criticized for have stretched the meaning of existing legal principles regarding application of the above act. When considering an existing legal principle of Supreme Court 2001Da57709 decision, we can’t recognized reasonably that the criminal defendant in the above case have done an entire act of use regarding the business as the subject of business in the Unfair Competition Prevention Law. Therefore, it will be needed to determine criminal cases like the above by being faithful to principles of the Unfair Competition Prevention Law. In conclusion, it is desirable that the courts should make reasonable decisions on cases similar to the cases of this paper by considering practical business relationship and the above principles of law since criminal decisions this paper analysed like the above are open to be criticized.