상법상 경업금지 법리의 새로운 전개

Legal principle concerning covenants not to compete regulated in commercial law is a liability of nonperformance imposed on those who have a confident relation with company owner or a company. A covenant not to compete contained in commercial law is scattered in general provision of law on commerce, law on commercial activity, and law on company, but the coverage of competitive business prohibition is regulated differently, depending on applicable matters. The liability of competitive business prohibition regulated in commercial law, without any exception, is applicable to contract relation during employment or during the terms of office, not to the contract relation after retirement or term of office. In addition, covenant not to compete or promise competitive business prohibition by a contract which can be recognized by interpretation is imposed on the basis of trust relation. Especially, promise competitive business prohibition is regulated by a contract on the basis of partners’ self-governing after term of office or retirement without a special guideline. The regulation of competitive business prohibition, secured by constitution, restricts freedom of business or selection of vocation. So, such limitation itself must be not only clear, but also it must be narrowly tailored. A covenant not to compete is composed of competitive business transaction prohibition, non-competition prohibition, and concurrent position prohibition. Competitive business prohibition of commercial user includes competitive business transaction prohibition and concurrent position prohibition. In case somebody infringes a regulation, the right of intervention, the right of compensation claim, and the right of contract termination, methods of deliverance, can be invoked by a counterpart. Competitive business prohibition of business transferrer regulates competitive business transaction prohibition. In case of a violation of the regulation, the counterpart can claim competitive business cease and compensation. Competitive business prohibition in the law of agents, limited partnership, and companies regulates competitive business transaction prohibition and concurrent position prohibition. If somebody infringes a regulation, the counterpart can claim the right of intervention and compensation. As mentioned above, this study investigated that competitive business prohibition regulated in many areas needs unity in an area and that if somebody infringes the regulation, the counterpart has to be given the right of intervention and compensation selectively.