상법 제22조의 해석에 관한 소고

A tradesman acquires the legal right to a trade name when he selects and uses one. While registration of a trade name is not mandatory, its registration strengthens his exclusive right to use the trade name so that he can file for cessation of illegal use of the same or similar trade name, which includes cancellation of a trade name registry, and damages by Article 23 of the Commercial Act. Also, Article 22 of the Commercial Act provides that a tradesman with a registered trade can exclude subsequent registration of the same trade name by the third party. It is debated whether claim for cancellation of a trade name registry is possible under the Article 22. The prevailing perspective and the case law are positive on this, which needs to be reconsidered mainly from following viewpoints. First, a tradesman is provided sufficient protection under Article 23 because it is not that difficult to prove unjust intention along with likelihood of misunderstanding required under Article 23. Second, the prevailing perspective is not favorable to small size merchant, the number of which is on increase. And this may discourage the development of commercial market. Third, Article 22 authorizes exclusion of subsequent trade name registry if only the formal requirements of the same trade name in the same line of business, which seems to reflect its procedural nature of law. Forth, interpretation of Article 22 in accordance with the prevailing perspective leads to the conflict of Article 22 and Article 23, in which the registered prior-user of a trade name and the registered post-user may demand against each other the cancellation of the registry respectively based on Article 23 and Article 22. The right to a trade name, however, should be distinguished from and preferred to the right given as a result of registration. For the registration of a trade name is only a way to protect juridical relations related to a trade name.