부정경쟁행위에 대한 손해배상책임 법리의 고찰

Abstract

Unfair competition is prohibited or regulated by special statutes, including the Unfair Competition Prevention and Trade Secret Protection Act (“UTA”). UTA aims at constructing and maintaining the order for fair competition. For this aim, UTA provides three types of civil remedies: (1) injunction (Art. 4); (2) damages (Art. 5); (3) measures to restore business goodwill of the plaintiff (Art. 6). The purpose of this paper is to study on legal principles of liability for damages caused by acts of unfair competition relating to Article 5. Under Article 5, a person whose business interest was injured by any act of unfair competition listed in Article 2(i) can recover damages from the defendant. Article 5 provides that “a person who intentionally or negligently causes damage to another person's business interest due to acts of unfair competition is liable for compensation of damages. However, Article 2(i)(c) of this Act only applies to intentional acts of unfair competition.” The nature of this Article is a special provision for ensuring compliance to Civil Code Article 750. Therefore, the plaintiff is required to prove the defendant's intent or negligence. The legal issues which this paper deals with are as follows. Firstly, it examines the legislative history and underlying meaning of Article 5. Secondly, it discusses whether it is necessary to know illegality as a factor of achieving intent. This issue is related with reduction of amount due to slight negligence under Article 14bis (4). Thirdly, it considers to delimit who is the right holder of a claim for damages caused by acts of unfair competition. For this consideration, it refers to manifold judicial precedents regarding acts of unfair competition. For lack of space, it precludes a discussion of the scope of compensation for damages with this issue. Such a discussion requires a separate paper.