부정경쟁방지법상 ‘기타 성과 등 무단사용행위’에 대한 비판적 고찰

Abstract

The year 2021 was the 60th anniversary year of the enactment of the Korean Unfair Competition Prevention and Trade Secret Protection Act (hereinafter referred to as the Unfair Competition Prevention Act). Korea’s Unfair Competition Prevention Act was enacted in 1961 taking the legislative formats of the Unfair Competition Prevention Act of Germany and Japan and listed the types of unfair competition activities such as causing confusion with another person’s goods or commercial facilities/activities, making false marks, activities causing the public’s misleading of the goods, and slander in business, etc. Currently, there are 13 types of unfair competition activities in the Act, including the new types of unfair competition activities in 2021: illegal use of data and unauthorized use of celebrities’ personal identification marks such as portraits and names. The Korean Unfair Competition Prevention Act has been adding the new types of unfair competition activities in the Act in order to regulate the continuously emerging unfair competition activities such as dilution, unauthorized entity’s registration or usage of other’s domain name, copying the shape of other’s goods, and to comply with Trademark Treaty and Paris Convention for the Protection of Industrial Property. In 2013, the Unfair Competition Prevention Act legislated ‘any other acts of infringing on other persons’ economic interests by using the achievements without their permission’ in Article 2.1.(Pa). And also continuously added the new types of unfair competition activities in Article 2.1.(Cha) to (Ta) afterward. The reason for such frequent revisions of the Act in recent years was to overcome the limitations to regulate the various unauthorized activities that were not listed in the Act and to clearly define each activity in the Act. Now it has been nearly nine years since Article 2.1.(Pa) was legislated in the Unfair Competition Prevention Act on July 30, 2013. Article 2.1.(Pa) was legislated to provide flexible and efficient interpretation of the court to regulate the various types of newly occurring unfair competition activities. However, there is a skeptical view that the terms and standards of Article 2.1.(Pa) are vague. Even though there were 5 Supreme Court cases of Article 2.1.(Pa) issues and the Supreme Court decision indicated some explanations of the Article and application of the standards, the vagueness of the Article still remains. Regarding such debates among scholars and frequent revisions of the Unfair Competition Acts, this paper researches the related cases of the past 9 years and explores the main issues of the cases. Especially this paper focuses on the research on Article 2.1.(Pa), specifically studying the standard of interpretation of the scope of the other’s achievements, illegality, and other main issues.