우리나라 ‘부정경쟁방지법의 탄생’과 그에 관한 법제사적 고찰

초록

The origin of the Korean Unfair Competition Prevention Law is the 1934 Korean Unfair Competition Prevention Order. This Order was made in Korea during the era of Japanese occupation. This Order stipulated that Japanese Unfair Competition Prevention Law made in 1934 should be applied to Korea. Japan had to ratify the 1925 Paris Convention Hague Amendment Conference in order to participate in the Paris Convention London Revision Conference scheduled to be held in 1934. Therefore, in 1934, Japan enacted Japan’s first Unfair Competition Prevention Law, which has a special legal character of the tort law under the Civil Code. Even after Korea was liberated from Japan, this Order remained in effect until 1961 when Korea’s first Unfair Competition Prevention Act was enacted in accordance with the ordinance of the United States Army Military Government and the Korean Constitutional Addendum. The Korean Unfair Competition Prevention Law was enacted as part of a project to reorganize laws for the purpose of modernizing the legislation. As can be seen from this legislative history, the Unfair Competition Prevention Law has the special legal character of the Tort Law in the Civil Law. This legal nature means that the Unfair Competition Prevention Law is not a legal protection method for granting rights, but a legal protection method for regulating behaviors. On the other hand, the Unfair Competition Prevention Law and the Antitrust Law aim to maintain a fair or free competition order. In that respect, the two laws are complementary to each other. However, from the point of view of comparative legal history, the historical background of the two laws is different. Therefore, there are differences as well as commonalities between the acts and methods of regulation that the two laws regulate. In cases where the two laws overlap, Article 15(2) of the Unfair Competition Prevention Law stipulates that the Antitrust Law shall take precedence in such cases. It would be desirable to understand that the application of the Antitrust Law first is appropriate only in areas not related to the protection of private interests.

키워드