법률위반과 부정경쟁행위

Abstract

In Korea Law System, it is not common that a breach of law could be an unfair competition. The Korean Unfair Competition Law which restricts types of unfair competition acts does not regulate a breach of law as the unfair competition. However, in comparison with the case of EU countries and US, the breach of law has been recognized as unfair competition. In particular, the breach of law which has been acknowledged as unfair competition by Federal Supreme Court of Germany(BGH) was codified Nr.11, Article 4 in Unfair competition Act of Germany, during 2004 revision of Unfair competition Act. In US case, an unlawful act may constitute unfair competition according to California statue law and a violation of almost any federal, state, or local law may serve as the basis for a claim under California s Unfair Competition Law. Such an unfair competition could be prohibited only by civil code article 750 in korean law system, because The Korean Unfair Competition Law has recognised only nine types of acts as unfair competition. So, a breach of law that is not covered by The Korean Unfair Competition Law could be an unfair competition based on Civil Code article 750. An illegality of article 750 should be admitted to mark a breach of law as a character of unfair competition. In order to constitute illegality based on Civil Code article 750, we need a standard of the illegality, that unlawful practices should mean a breach of law which regulates market behavior related to interest of participants in market because all unlawful practices would not be accepted as unfair competition. this standard is used in some of EU countries, but they regulate a breach of law as unfair competition based their competition law, not civil law. The Korean Supreme Court judged that an unfair business practice could be unfair competition based on Civil Code article 750, even though they are not covered by unfair competition law. We need to discuss whether a breach of law is a new type of unfair competition act or just one of torts based on Civil Code.