부정경쟁방지법 성과도용 조항 적용 사건의 경향 분석 - ‘골프존 사건’ 대법원판결 전후 재판례의 정량적 비교를 중심으로

Since the Unfair Competition Prevention Act (UCPA) introduced ‘Item (Pa)’ (following the numbering of the current Act) into its Article 2, Subparagraph 1 in the year of 2013, nearly 12 years have passed. During this period, a number of cases have accumulated. In the meantime, the Supreme Court presented the standard of determining Item (Pa) in its ruling in the Golfzon (2016Da276467) case on March 26, 2020. This study investigated trends in the practical application of Item (Pa) in court rulings before and after the Golfzon case. Diachronic and quantitative analysis was conducted on a total of 1,134 court rulings. The results confirmed that the application of Item (Pa) shows a general trend of increase and is being actively asserted alongside intellectual property laws and other unfair competition provisions in disputes of various types and structures. Overall, this suggests that its supplementary role in intellectual property protection is well recognized in practice. Comparing court rulings before and after the Golfzon ruling, almost no change was observed in the rate of recognition of Item (Pa) violation across all cases. However, in cases where there was intense dispute regarding the establishment of Item (Pa), the rate of recognition was somewhat higher as compared to other cases after the Golfzon case. Meanwhile, the influence of the Golfzon ruling was relatively clear in the examining structure of Item (Pa). While the examination of the subject matter became more thorough compared to the past, that of the illegality of the conduct weakened, which means that the Golfzon ruling shifted the court’s focus in Item (Pa)’s examination from the conduct itself toward the protected subject matter. Such tendency can be viewed negatively in that it dilutes the nature of the UCPA as a conduct-regulating norm, particularly Item (Pa) which is directly rooted in tort law. In order for the UCPA to secure its regulatory domain relative to other intellectual property laws, its conduct-regulating nature - distinct from rights -granting legislation - needs to be clearly recognized in practice. This study examined issues in practice arising from the examining structure of Item (Pa) which became prevalent following Golfzon ruling. Also explored are principles for modified application of Golfzon ruling while generally accepting its criteria, in search of practical measure of restoring balance between the subject matter and the conduct requirements in examining Item (Pa).