공중은 왜 부랑자(a derelict)를 감내하여야 하나?(속편) - 파목의 역습 -

There are difficulties in interpreting Pa-mok unfair competition under the Unfair Competition Prevention Act. This stems from the fact that the law was enacted by slavish copying the Supreme Court ruling word, even though the original legislative form or method did not comply with the existing Unfair Competition Prevention Act. This year, regarding the similarity of the game screens, the Seoul High Court denied copyright infringement but acknowledged Pa-mok's unfair competition practices. However, it is believed that this ruling is based on a fundamental error in intellectual property law. Unfair competition acts exist under the legal principles of common law torts and French law's torts and unjust enrichment, and the unfair competition act of 'Pa-mok' is judged to have accepted the legal principle of parasitic competition (concurrence parasitaire, free riding) based on the French law of unjust enrichment. However, the French legal system and our legal system are fundamentally different, and France approached unfair competition through cases derived from the concept of torts in civil law, but our law can be said to have added some unfair profit concepts originated from the concept of misrepresentation in Anglo-American law. In 1918, the U.S. Supreme Court decided INS v. Through the AP case, misappropriation based on unfair enrichment law is recognized as an act of unfair competition, and since it can be said to be the legal principle most similar to Pa-mok under Korean law, that legal principle can be inferred from the interpretation of Pa-mok. In addition, our court calculates damages for unfair competition based on unjust enrichment based on the plaintiff's damages based on the tort, but there is a fundamental flaw in this. Since the unjust enrichment law orders the return of the profits acquired by the defendant, the return of the defendant's gains, not the plaintiff's damages, must be ordered. This article is sequel.