디자인보호법상 심미성 요건의 완화 해석을 위한 제언

The Design Protection Act of Korea only protects the designs that arouse a sense of beauty and at the same time requires the fulfillment of the aesthetic sense. This paper has made a definition of beauty and a sense of beauty and examined how they can be interpreted anew, while calling for easing the requirement on the aesthetic sense for the property of designs. It has comparatively analyzed the legislative attitudes toward the requirement on the aesthetic sense by examining the Design Protection Act of the five nations — the United States, China, Japan, and the European Union as well as South Korea — and figured out how the requirement on the aesthetic sense is interpreted both from the standpoint of law and in the field of design work. Two directions for interpreting the aesthetic sense have been suggested. First, the concept of the aesthetic sense should be interpreted in a wider context of incorporating various elements that include elegant beauty and the beauty of ugliness. Second, the concept of the aesthetic sense should be restrictively defined in terms of the level of ornamentation. This article has suggested some grounds for arguments with regard to the new interpretation of the aesthetic sense. One of the strongest contentions is that the original goals of the Design Protection Act of Korea — helping cultivate creative designs and promoting the development of the design industry — will not likely achieve the desired outcome when the Act continues to restrict the concept of beauty and a sense of beauty to the domain of elegant beauty, which is because the artistic value — being subjective in itself — is hard to judge from an objective viewpoint.