경쟁자 신용훼손행위의 부정경쟁행위로서의 성격과 그 규율 공백에 관한 연구

This article examines on the disparagement or trade libel, which is described as an act of damaging a competitor’s business credit by false allegations about the competitor or its products. Korea’s Unfair Competition Prevention Act (UCPA) had contained a provision on disparagement which abided by the Paris Convention for the Protection of Industrial Property (hereinafter, “Paris Convention”) when it was originally enacted, which was removed in its amendment in 1986. As a result, there is no provision ruling unfair competition practices in the current version of the UCPA which is applicable to a disparagement act. Such amendment history and the current state of the law can be conceived as a notably unusual case as compared to unfair competition legislation of foreign countries, and even may be evaluated as an insufficient implementation of the Paris Convention, an international treaty to which Republic of Korea is a signing party. Disparagement is structurally differentiated from other types of unfair competition practices being prescribed in the UCPA in that it takes the ‘negative form’, which is characterized by an act designed to attack on the competitiveness of a competitor, aiming at its impairment. This structural uniqueness leads to the directness of harm to a competitor and its severe and prolonged effects incurred on the competitor when such act is repeated without restriction. Considering such need for regulation and the nature of disparagement as protecting private interests, it is timely to give serious consideration on introducing disparagement to the UCPA by adding it on the list of unfair competition practices. Such amendment is suggested as a means for providing victims of such practices with a remedy of injunction, while bringing about additional benefits of improved protection against infringement warning (e.g., by means of a cease and desist letter sent to customers of the competitor) being unfairly conducted.