지적재산법의 비침해행위와 일반불법행위 －불법행위법리에 의한 지적재산법의 보완 문제를 중심으로－

초록

This paper deals with the question caused by the interface between the intellectual property theory and the general tort doctrine. Legal issue surrounding information, which is beyond the protection by intellectual property laws, is whether it can be protect by the tort system. Although information may have no protection because of the lack in the requirements of intellectual property laws, it can be protected by the general tort doctrine. In this regard, the tort system performs to make up for the legislative deficit in the current intellectual property system. In Korea, Supreme Court's decision and some lower courts' judgements recognized the tort liability while denying the infringement of intellectual property laws. First of all, lower courts judgements recognized the tort liability, making their ruling on the cases that even the use of an uncopyrightable work should be recognized as a tort "in particular cases where it is used to gain unjust profit or to harm the author." Moreover, Supreme Court recognized so-called "injunction" on its case. The summary of decision which Supreme Court found is as follows : "An act to use the product of significant effort and investment made by a competitor without permission, for one's own business and in a manner contrary to business ethics or the order of fair competition, and through this to gain unjust profit by taking advantage of the effort and investment of the competitor and violate the competitor's profit legally entitled to protection, is an act of unfair competition which constitutes a tort under civil law. In cases where the state of use without permission continues to the point where ordering monetary compensation for the victim cannot be expected to bring relief on an actual level, and where an order to prohibit such use without permission would protect the victim's profits to a greater extent when compared and reckoned against the disadvantage caused to the offender, a claim can be made to prohibit or prevent this act."These decisions may run counter to the fundamental principle of intellectual property laws that things in the public domain can be appropriated by anyone without liability for infringement. They also readily admit the "illegality" issue which is the primary requisite to the tort liability. In their reasons of decisions, this is the most salient question of all. In discussing this critical issue, first this paper examines the relationship between Korean unfair competition prevention law and tort law. Second, this paper considers German unfair competition law ("Gesetz gegen den unlauteren Wettbewerb, UWG") and its cases for solving the illegality issue. It also considers Japanese theoretical trend about this question. Finally, this paper discusses the desirable approach for the criteria of illegality.

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