성명권의 내용 및 인격권에 기한 금지청구권의 인정요건에 관한 고찰 - ʻ대법원 2022. 11. 17. 선고 2018다249995 판결ʼ을 중심으로 -

In this case, the content of the right to name in question is whether the right to exclusive use of the name can be recognized. However, the Supreme Court in this case does not clarify the judgment in this part and is immediately moving toward the judgment of infringement. The judgment on whether the exclusive right to a name can be recognized, in which case the exclusive right to a name is recognized, and if the exclusive right to a name that cannot be recognized by humans is certain, the judgment on whether it can be recognized by an organization is omitted. However, considering the function of the name and the nature of the name right as a personal right, the exclusive right to the name itself cannot be recognized, and this conclusion is the same even if the subject of the name right is a corporation. In addition, although infringement is naturally determined in the process of determining the contents of the right to name, the Supreme Court precedent in this case only judges infringement in balancing manner, omitting the process of specifically forming the contents of the right to name related to the dispute. However, balancing is not a judgment method used to apply legal norms, but is essentially an argument method that is difficult to exclude arbitrariness. In addition, the specific results obtained by balancing are difficult to generalize and abstract. The role of the Supreme court is not a remedy for the interests of the parties in a specific case, but rather a role of securing legal unity, that is, forming a law that can be generalized. This is even more so considering the current situation in which the court's judgment is replacing legislation regarding civil protect.