저작권법에 의한 보호가 부정되는 경우 부정경쟁방지 및 영업비밀보호에 관한 법률 제2조 제1호 (차)목의 적용범위 (The scope of application of Article 2 (1) (j) of Unfair Competition Prevention and Trade Secret Protection Act in case the protection under the Copyright Act is denied)

서지정보

· 발행기관 : 한양법학회
· 수록지 정보 : 한양법학 / 29권 / 1호 / 79 ~ 111페이지
· 저자명 : 박성호

초록

Article 2 (1) (j) of the Unfair Competition Prevention Act was newly established in 2013. This provision is supplementary general provision and its contents are inclusive. Therefore, there is a possibility that Article 2 (1) (j) will be expanded in practice. The purpose of this paper is to clarify the limits to which Article 2 (1) (j) is applied when the protection by copyright law is denied. The key point of this paper is that there should be 'special circumstances' that can be judged to be illegal as unfair competition act in applying Article 2 (1) (j). In order to formulate these 'special circumstances', it is necessary to specify them. For the classification of 'special circumstances', the precedents and interpretations of the general provisions of the German Unfair Competition Prevention Act can be referred from a comparative perspective. According to the German precedent and interpretation theory, as a type of behavior in which "special circumstances" are recognized, direct imitation of the intellectual achievements of another person, imitation of a mode contrary to contractual obligation or justice, or imitation of the mode of acquiring information by means of fraudulent means. And in order to be recognized as a 'special matter', it is necessary that the achievements of others are of a certain transaction value. The degree of transactional value required will need to be determined in consideration of the degree of imitation, the mode of imitation, and the limited period of time reasonably necessary for the return on investment of the achievement developer.

영어초록

Article 2 (1) (j) of the Unfair Competition Prevention Act was newly established in 2013. This provision is supplementary general provision and its contents are inclusive. Therefore, there is a possibility that Article 2 (1) (j) will be expanded in practice. The purpose of this paper is to clarify the limits to which Article 2 (1) (j) is applied when the protection by copyright law is denied. The key point of this paper is that there should be 'special circumstances' that can be judged to be illegal as unfair competition act in applying Article 2 (1) (j). In order to formulate these 'special circumstances', it is necessary to specify them. For the classification of 'special circumstances', the precedents and interpretations of the general provisions of the German Unfair Competition Prevention Act can be referred from a comparative perspective. According to the German precedent and interpretation theory, as a type of behavior in which "special circumstances" are recognized, direct imitation of the intellectual achievements of another person, imitation of a mode contrary to contractual obligation or justice, or imitation of the mode of acquiring information by means of fraudulent means. And in order to be recognized as a 'special matter', it is necessary that the achievements of others are of a certain transaction value. The degree of transactional value required will need to be determined in consideration of the degree of imitation, the mode of imitation, and the limited period of time reasonably necessary for the return on investment of the achievement developer.

참고자료

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