불공정 경쟁행위의 규제 -기술과 시장의 변화에 대한 법적 대응-

Abstract

There are an increasing number of lawsuits relating to new technologies where

the plaintiffs or complainants attempt in vain to claim damages for intellectual

property infringements and the courts sometimes award damages for torts instead.

New technologies in the field of computers and telecommunications have created

totally new markets, which give rise to a variety of disputes relating to

misappropriation of intangible properties or unfair competition. Courts nowadays

encounter cases where the alleged misappropriation of intangible properties do

not amount to intellectual property infringement but to a tort. There have been

raised various questions as to the requirements of tort especially the standards of

wrongfulness and the feasibility of granting injunctions preventing the alleged tort

under the Civil Code which have traditionally allowed for injunctions only in

cases of infringement upon real property rights.

Like in other jurisdictions, there are several statutes dealing with

misappropriation of intangible property or unfair competition in Korea. First, the

Unfair Competition Prevention and Trade Secret Protection Act (UTA) may be

the utmost important statute to rely on in cases of unfair competition. Yet, the

UTA is limited passing off and trade secret misappropriation and may not extend

to cover other unfair competition which may arise in new markets due to new

technologies. Secondly, the Antitrust & Fair Trade Act (Antitrust Act) prohibits

not only anti-competitive practices but also unfair trade practices. The Antitrust

Act heavily relies on the initiatives by the Fair Trade Commission of Korea so...