부정경쟁방지법상 신설된 일반조항의 법적성격과 그 적용의 한계

Recently a revised provision containing a General Clause(Article 2, Paragraph 1, Subparagraph 10) to the Unfair Competition Prevention and Trade Secret Protection Act has been introduced in Korea. It says that “An act to use the product of significant effort and investment made by a competitor without permission, for one’s own business and in a manner contrary to business ethics or the order of fair competition, and through this to gain unjust profit by taking advantage of the effort and investment of the competitor and violate the competitor’s profit legally entitled to protection”. The purpose of this revision is to seek a proper measure against new and different types of unfair competition. However, the newly introduced General Clause has some characteristics and limitations comparing to the General Clause of Germany or Switzerland. First, it is not a universal but a supplementary characteristics so that our general clause can be applied selectively only to the specific provision listed Article 2, Paragraph 1, Subparagraph. Second, unlike Germany and Switzerland, the purpose of the Act is limited for the protection of competitioner’s interests without regard to the consumer protection or public interests. Third, it’s subject matter is limited to the exploitation of others' achievement among many kinds of general unfair competition acts, which is codified on the Suprem Court’s decision recognized the tort liability. Fourth, the newly introduced General Clause has also limitation in perspective of legal relief. Furthermore, the introduction of the new General Clause require rebuilding a new relationship between Unfair Competition Prevention Act and Antitrust & Fair trade Law that has also its own General Clause. Relationship between Unfair Competition Prevention Act and intellectual property laws, the general tort doctrine also require some reconsideration. This paper deals with the above said characteristics and limitations of the the new General Clause. Furthermore, this paper examines some question and Legal issue caused by the interface between the intellectual property theory and the general tort doctrine and Antitrust & Fair trade Law. Finally, this paper discusses the desirable approach for rebuilding a new relationship between Unfair Competition Prevention Act and Antitrust & Fair trade Law.