부정경쟁방지법 사건도 관할집중의 대상으로 삼을 것인가?

Abstract

Under the centralized jurisdiction system for patent litigation, etc. currently in effect by our related laws, which have been significantly changed in 2015, a case on the Korean Unfair Competition Prevention Act (KUCPA) is not a case related to ‘patent rights, etc.’ in the above related laws but is a case of other intellectual property rights, and so it is excluded from the subject of the centralized jurisdiction. In other words, at the first trial stage of the KUCPA case, the district court in the same city as the location of the competent high court only can have competing jurisdiction according to the parties’ choice, and at the appeal stage, the general high courts still have separate jurisdictions as in the past instead of that the Korean Patent Court has the exclusive jurisdiction. However, from several aspects, the problematic issue and final conclusion of this article is that the KUCPA case needs to be subject to a high degree of jurisdictional centralization just like patent case and trademark case. At first in this article, the recent situation of several foreign countries such as the United States, Japan, Germany, the European Union, China and Taiwan were examined in as much detail as possible, focusing on whether or not the jurisdiction on unfair competition prevention case is centralized. Furthermore, on the basis of such comparative legal analysis, as to whether it would be appropriate to include the KUCPA case in the future within the subject of jurisdictional centralization, this article reviewed all the arguments with contradictory perspectives for the above problematic issue one by one, while dividing those arguments into two categories as 1) grounds against jurisdictional centralization and 2) grounds supporting such centralization. Among the grounds in 1) above, one of the most realistic hardships which is difficult to be overlooked before going toward jurisdictional centralization is that if Korea introduces jurisdictional centralization in the KUCPA case, it may conflict with the general attitude of major countries. Through comparative legal analysis, it can be confirmed that the United States, Japan, and the European Union explicitly exclude suchlike cases from the jurisdictional centralization while Germany and China, which appear to have slightly different appearance, are also evaluated to have meaningless or very low level of jurisdictional centralization. However, it is necessary to clearly recognize that we do have a wide range of choices in the field of the KUCPA, unlike the patent and copyright field which is very uniform in the world. In this part of this article, it was emphasized that, if such a perception is premised, our own characteristic independent legislation is fully possible. Therefore, among the grounds in 1) above, the grounds that our legislators should seriously consider are other grounds rather than the fact that the above independent legislation may conflict with the legislative attitudes of major countries. In other words, if jurisdiction over the KUCPA case is concentrated, there could be concerns about inconvenience forum for defendants and pouring frivolous lawsuits, concerns about forum shopping will increase, and fundamental doubt about whether higher degree of centralization of jurisdiction where just few specialized courts will control almost all the Korea’s intellectual property dispute resolution procedures is ultimately a proper direction in perspective of the unique nature of fair judicial system should be resolved in advance. In particular, regarding the last ground, I think that sincere consideration should be given by everyone, regardless of the pros and cons of individual commentators, not only to the KUCPA-related issue covered in this article, but also to the overall Korean intellectual property system. On the other hand, in analyzing the grounds related to the above 2), the jurisdictional centralization in the KUCPA case make, first in the aspect of qualitative improvement, the specialized judges to secure a sense of balance between protection of intellectual property rights and fair competition in the process of dealing with unfair competition cases similar to the antitrust case while, in the aspect of quantitative improvement, it can also make the IP specialized court such as the Korean Patent Court to strengthen their adaptive capabilities for trial by providing enough relevant cases to bring up more professional judges. In addition, it cannot be overlooked that a better condition will be created for that the trademark law and general unfair competition laws will be more harmoniously developed. In addition, all trade secret cases must be handled together with patent cases to create more effective case handling process because trade secret cases, which are related to technical information, may require a high degree of technical expertise for their dispute resolution and trade secret law demands a sharp balance with the patent law. The conclusion in this article is that it is much more reasonable to include all the KUCPA cases in the high degree of jurisdictional centralization, even though the Korea’s peculiar position which recognizes the trademark law case as a very subject of jurisdictional centralization like the patent case is beyond the scope of this article’s discussion and analysis, assuming that such weird position will be firmly kept in the future.