지식재산권법의 유한성에 대한 중국 부정경쟁방지법의 제한된 보완적 보호 연구

Professor Chung Cheng-Si of China's Intellectual Property Law recognized that the Unfair Competition Prevention Act was not all of the Intellectual Property Act, but only provided additional protection from unfair competition, and argued that China's Unfair Competition Prevention Act should be enacted to demand that sufficient provisions be enacted to compensate for the shortcomings as an intellectual property law. The relevant judicial policy of the Supreme People's Court around 2008 continuously explained the limited and complementary protection of the Unfair Competition Prevention Act. For example, the relationship between intellectual property laws such as patents, trademarks, copyrights, and the Unfair Competition Prevention Act has been properly identified, making it clear that the Unfair Competition Prevention Act only supplements the Intellectual Property Act limitedly, and its scope is not a broad full-scale action. After that, the relevant trial limited the application of complementary protection due to the restrictions on the application of general provisions to prevent unfair competition and the legality of estimating competitive behavior. While the overall protection theory emphasizes the broadness of complementary protection and low standards that are not suitable for use as standards, the limited complementary protection theory implements the limitation and high standards of complementary protection. In other words, this refers to improving standard protection, limiting the scope of protection, and practically adjusting the intrinsic relationship between special laws and complementary protection laws. The theory of limited complementary protection consists of two requirements: supplementation and limited. Limited complementary protection must be understood in three dimensions. First, at the level of master relations, the protection of the Intellectual Property Act should be led by special laws and the protection of the Unfair Competition Prevention Act should subsidize this. Second, it is the priority nature and exclusion in effect. Third, the functions of the two requirements of supplementation and limitation are complementary. China has always emphasized that the motivation and goal of protecting intellectual property rights is to encourage innovation and to strengthen promotion of innovation development. The realization of public policy goals, such as innovation in intellectual property rights, must require an appropriate balance between rights and goals. China's Unfair Competition Prevention Act requires adjustment of the legislative spirit of the Unfair Competition Prevention Act in case of complementary protection by means other than the Unfair Competition Prevention Act, otherwise, the balance of interests of the Unfair Competition Prevention Act may be destroyed, which may violate legislative policies. Taking the public domain as a principle and providing exceptionally limited complementary protection is also required by the goals of public policy that encourage innovation and share knowledge. Intellectual property policy requires efforts to find a balance point that can maximize net income, deducting social value losses caused by the reduction of the public sector as exclusive rights increase. Therefore, limited and complementary protection of the Unfair Competition Prevention Act must be operated in a limited situation, and attention should always be paid to the maintenance and protection of the public sector, limited to legitimate reasons. It should be possible to minimize the loss of social value caused by the reduction of the public sector caused by protection and maximize net income to the maximum. In addition, special law adjustments must be applied exclusively, which belongs to the form of the scope of adjustment of the Intellectual Property Act and, in principle, excludes the limited and complementary protection application of China's Unfair Competition Prevention Act. The reason is that the Intellectual Property Act and the Unfair Competition Prevention Act have a systematicity as a single integrated whole, and the establishment of a system such as protection requirements, deadlines, and exceptions of intellectual property rights is the result of legislation in balance. The scope of protection of the Intellectual Property Act must be respected with other Intellectual Property Act and Unfair Competition Prevention Act. Here, whether or not China's judicial policy conflicts with the legislative policy of the Special Act is an important criterion for determining the scope of application of the Unfair Competition Prevention Act and demonstrating complementary protection. Competitive acts that are not specifically prescribed by law can only be recognized as unfair competition acts if regulations that violate principles can be recognized in accordance with recognized business standards and universal recognition, thereby preventing unfair competition from being hindered. The consistency of the legal system and the adjustment of legislative policies are practical criteria for the limited and complementary protection of the Unfair Competition Prevention Act, and whether the scope of protection of the Intellectual Property Act and the conditions of protection are met are formal criteria. Intellectual property rights legal interests of the limited complementary protection of China's Unfair Competition Prevention Act can be divided into limited complementary protection legal interests of the traditional Unfair Competition Prevention Act and new types of pilot intellectual property legal interests. The former already has a stable unfair competition protection structure, and has already entered the enumeration regulation of unfair competition behavior. Pilot intellectual property legal interests will have new types of legal interests with greater flexibility, openness, and discretion. Unfair Competition Prevention Act naturally has a more prominent pilot protection function. Pilot legal interest protection usually considers three requirements. In addition, the pilot legal interest is to develop a completely new type of legal interest or protection space outside of current rights and traditional legal interests, and it is necessary to break through the barriers to entry and policies of the current legal interest. With the development of science and technology, economy, and society, intellectual property rights were generally expanded and free space for imitation continued to decrease. For example, with the development of transmission technology and the increase of objects of works, the scope of copyright protection continued to expand, and computer software and databases were included in the scope of copyright protection. In addition, the rules of intellectual property rights do not clearly show regulations on the freedom of imitation. The Unfair Competition Prevention Act has two opposing positions. They are to restrict the freedom of imitation more strictly for reasons of unearned income and to adhere to the principle of freedom of imitation. The expansion of the Unfair Competition Prevention Act is easy to be made arbitrarily depending on the discretion of each case and the specific situation, and the expansion of protection should be more careful and restrained as the Unfair Competition Prevention Act itself is in a position of limited complementary protection. The main direction should be the maintenance and protection of freedom of competition. The specific boundaries of limited complementary protection have both certainty and ambiguity, that is, the clarity of the core situation and the ambiguity of the boundaries. For example, if you are subject to protection under the special law but do not meet the protection requirements, providing no complementary protection is a clear and reasonable option. The legitimate reasons for other protection become unclear again. Even ambiguous matters can be judged consistently through consensus on legal consciousness and value judgment. Ultimately, however, we must return to an appropriate balance between protecting legal interests and the public sphere. Therefore, some degree of uncertainty does not impede the validity of the theory of limited complementary protection of the Unfair Competition Prevention Act on the finiteness of the Intellectual Property Act.