허위⋅과장의 비교광고에 대한 경쟁자의 손해배상청구권의 성립요건에 대한 비교법적 검토

Comparative advertising is a relatively recent phenomenon in Korea. Comparative ad can enhance the social welfare, by providing the consumers with the useful information and by making market entrance easier. On the other hand, comparative ad may be harmful especially when it contains false or misleading information about competitor product. It may distort the consumer's purchasing decision and cause directly harm to the competitor's reputation or good will. Therefore how to regulate the false or misleading comparative ad is a crucial issue. In Korea, public enforcement by FTC has been a dominant regulatory method, however recently we can witness more and more competitor lawsuit about false or misleading comparative ad. In U.S. there has been a serious debate about whether the strict liability of Lanham Act 43(a) competitor lawsuit can be constitutionally justified. Lanham Act 43(a) strict liability has been criticized, based upon the fact that it may act as a barrier to the new entrant to the market ad impede the competition in the market. Other commentator argued that commercial speech is also protected by the First Amendment, and if the ad is about the public concern, strict liability is not an appropriate fault standard. However, the 3rd circuit held that even though commercial speech is protected by the first amendment, it does not necessarily mean that the protection level for comparative ad should be the same as political speech. In Korea, Act on Fair Labeling and advertising(AFLA) §10 also provides that advertiser's liability about false or misleading ad is a strict liability. In my view one of the crucial purpose of AFLA is consumer protection and this should be kept in mind when applying the AFLA§10 in the context of competitor lawsuit about allegedly false comparative advertising. This will help reducing the potentially negative effect of strict liability of AFLA by impeding competition with the threat of litigation to the expected new entrant. Another issue is how to balance the difference between AFLA and defamation. In my view, AFLA should be first applied to the false advertising competitor lawsuit. First, in Korea, the speaker cannot be exempted from liability solely based upon the truth of the speech. It may cause serious conflict with AFLA, since truthful and not misleading advertising is likely to be found unlawful because its purpose is purely private one for profit gaining rather than public purpose. Moreover, no fault defense in defamation will also conflict with AFLA, since some false or misleading advertising can be exempted from liability by no fault defense.