거짓·과장의 표시·광고에 있어서 부당성 판단

Abstract

In Korea 's Act of Labelling and Advertising, a representative type of labeling and advertising - false exaggerated labeling and advertising - requires falsity or exaggeration and then consumer perceptibility, fair trade inhibition. Of three requirements falsity or exaggeration and consumer perception are important. In cases of Korean Courts, although the judgment of whether or not a falsehood is theoretically a matter of fact recognition, sometimes social norms are involved and, more often, factors related to the secondary requirement such as misleadingness of consumers are included in that judgement. From these cases, I become to ask a fundamental question as to whether the Korean Labeling and Advertising Act should be classified into four types, and, in particular, whether the requirement of falsity should be distinguished from the requirement of misleadingness. I propose to revise the present regulation of the false or exaggerated(1st tyle), deceptive (2nd type) labeling and advertising prescribed by the Act into the "false or misleading" ones - such as the Lanham Act of the United States does or all four types of the Act to be examples with the central concept of consumer perceptibility. I think that it is necessary to clarify the object of proof in the substantiation program of labeling and advertising Act and to review significance of system further. If the content of a labeling advertising is related to an abstract concept, rather than a simple fact, what should be proved is an objective and reasonable basis for the claim on the labeling or advertising. In addition, I believe that it is reasonable to switch the present substantiation program to the pre-regulatory one.