시장경제가 정상적으로 기능하기 위해서는 시장에서의 경쟁이 공정하게 이루어질 필요가 있으며,부정한 경쟁행위가 만연한 사회에서는 경제의 건전한 발전도 기대할 수 없다.특히 최근에 와서 기술이 발전하고 시장의 환경이 급속하게 변화하는 시점에서 나타나는 다양한 유형의 불공정한 거래행위와 전통적인 지식재산권제도로 충분히 보호할 수 없는 새로운 지식재산이 출현하고 있다.다시 말해서 기술의 발전과 시장의 변화로 인하여 부정한 방법의 인터넷 영업 광고 등 경제적 가치가 있는 타인의 지식재산의 도용을 둘러싼 다양한 분쟁의 형태가 나타나고 있다.
따라서 이러한 새로운 유형의 부정한 경쟁행위에 대하여 적절한 대응이 필요함에도 불구하고 현행 ‘부정경쟁방지 및 영업비밀보호에 관한 법률’중 부정경쟁행위에 관한 규정(이하 “부정경쟁방지법”이라 한다)은 부정경쟁행위를 제한ㆍ열거적으로 규정하고 있어 합리적이고 효율적인 대응을 어렵게 하고 있다.
특히 부정경쟁방지법은 창작성,신규성 등 다른 전통적인 지식재산권법에서 요구하는 요건을 충족시키지 못하는 것이라고 하더라도 시장에서 경제적 가치를 가지는 무형적 산물의 보호가 필요하다는 점에서 효용성을 이용할 수 있을 것으로 본다. 특히 현행 부정경쟁방지법은 부정경쟁행위 일반을 금지하는 것이 아니라 ‘널리 알려진 標識의 혼동행위’등 특정 부정경쟁행위 유형만 금지하고 있다.이러한 사정은 일본의 부정경쟁방지법 발전과정과 비슷한 것으로 우리경제가 부정경쟁행위 전반을 금지할 만큼 성숙한 것이 아니었고,도리어 경쟁을 촉진하고 시장경제를 발전시키는 것이 급선무였기 때문이었다고 생각된다. 이는 마치 성장기의 어린이에게 질서와 규율만을 강조하다 성장도 못하고 괴사할 수 있어 꼭 필요한 규율만을 강조하고 우선 창의와 성장을 중시하면서 시기에 맞는 적절한 규제를 하는 것과 비슷한 이치로서 현행 부정경쟁방지법은 아직 발전과정에 있는 과도기적 법이라 할 수 있을 것이다.
그러나 우리의 경제규모가 커지고 성장만을 중시하던 시대에서 벗어나 지식재산의 중시 등 건전한 경제발전을 꾀하고 있다.경제의 건전한 발전을 위해서는 기업간의 자유로운 경쟁이 허용되어야 하지만 이와 동시에 이러한 경쟁이 공정하게 이루어져야만 한다.그리고 공정한 경쟁을 보장하기 위해서 부정경쟁방지법의 중요성이 강조되기도 하지만 부정경쟁행위가 지나치게 넓게 인정되는 경우에는 기업간 자유로운 경쟁이 저해될 수 있으며 이러한 자유경쟁의 지나친 간섭과 규제로 인하여 직간접적으로 소비자 및 수요자가 피해를 볼 수도 있다는 점에서 신중히 접근할 필요가 있다.
이러한 부정경쟁행위의 신경향 등에 따라 현행의 부정경쟁방지법은 다양한 방면에서 재검토되고 논의되어야 할 것이다.그 중 가장 중요하게 다루어져야 할 부분이 부정경쟁행위의 유형을 제한 열거적으로 규정한 현행의 법률 규정에 대한 검토이다.즉 이를 독일 등에서 규정하고 있는 일반규정으로 정할 수 있을까 하는 문제이다.이에 대한 검토가 필요하다.
다음으로 부정경쟁방지법의 현행 규정중 피해자에 의한 상대방의 고의․과실 입증제도가 특허법 등에서 규정하고 있는 침해자에 대한 과실추정권과 형평을 맞출 필요가 있느냐의 여부,손해배상제도에서 손해배상액 산정 등에 문제는 없는지의 여부,현행 상표법에서 규정하는 상표보호제도와 부정경쟁방지 법에서 보호하는 상표의 보호 범위가 충돌할 가능성은 없는지 있다면 이의 해결방법은 어떠한 것이 있을 것인가의 여부 등에 대한 검토 등이 필요하다.
또한 나아가 부정경쟁방지 및 영업비밀보호법 제2조에서 규정하고 있는 개별 부정경쟁행위 유형 중에서 식별력 손상 및 명성손상행위에 대해 식별력 등의 손상행위 이외에 약화가 포함되는지 여부,사이버스쿼팅에 대한 주지성 완화 여부,새로운 부정경쟁행위의 신설여부 등에 대한 검토 등도 필요하다.
연구의 내용 및 범위
Ⅰ.연구의 내용 앞에서 본 연구의 필요성에 따라 우선 현행법상 제한 열거적으로 규정되어 있는 부정경쟁행위를 예시적 규정으로 전환하고 새롭게 등장하는 다양한 유형 및 공정한 상관습에 대한 부정경쟁행위 등을 포괄적으로 규제할 수 있는 “일반조항의 신설”여부를 중점적으로 검토한다.
다음으로 부정경쟁행위에 의한 침해의 경우에는 가해자의 고의나 과실을 입증하는 것이 불필요하거나 어렵다는 점을 감안하여 과실책임주의의 수정여부와 등록여부와 관계없이 상표의 도용으로 인한 소비자의 출처혼동을 방지하고 상표에 관한 명성과 신용의 주체가 가진 재산적 이익을 보호하기 위해서 등록상표와 미등록주지 상표를 통일적으로 상표법에 규정할 필요성이 있는지 검토할 것이다.
식별력 및 명성 손상행위에 있어 명성 손상행위에는 명성 약화행위도 포함하느냐의 여부가 명확하게 규정되어 있지 않아,해석상의 논의를 가져오고 있는 바,이에 대한 부분을 검토한다.또한 사이버스퀴팅에서 주지성의 요건을 갖추지 못한 상표에 대하여 부정한 목적으로 도메인 이름을 등록 또는 사용하는 경우에는 부정경쟁방지법을 적용할 수 없기 때문에 주지성의 요건을 완하하는 방법을 연구하고,부정경쟁방지법 제15조의 규정자체가 애매모호하고 그 결과를 예측하기 어려운 불명확한 규정이므로 상표법과의 관계를 명확히 규정할 필요가 있어 부정경쟁방지법과 상표법간의 상호 관계 규정의 명확화 부분도 검토할 것이다.
마지막으로 실효성 있는 피해구제를 위해 고의적 침해의 경우 법원의 재량으로 추가적인 배상금을 침해자에게 부과하는 증액손해배상제도나 법정손해배상액 제도의 도입 여부를 신중하게 검토할 것이다.
Ⅱ.연구의 범위 본 연구보고서에서는 현행 ‘‘부정경쟁방지 및 영업비밀보호에 관한 법률’의 내용중 영업비밀보호에 관한 부분을 제외하고 표지보호법으로 정의할 수 있는 부정경쟁방지 규정에 관한 내용만을 다루기로 한다. 부정경쟁방지법 중에서 부정경쟁행위의 유형을 현행의 제한열거주의 방식에서 독일법과 동일한 방법인 일반규제조항으로 변경하는 방안에 대한 논의를 중심으로 진행한다.
다음으로 부정경쟁방지법의 개별 사안에 대한 몇 가지를 검토하고자 한다.즉 부정경쟁행위 침해에 대한 피해자 구제 방법 중에서 피해자에 의한 상대방의 고의․과실 입증제도를 과실추정주의를 도입하면서 침해자의 무과실 입증으로 전환할 것 인가의 여부,식별력 손상 및 명성 손상행위에 대한 약화 포함여부,사이버스쿼팅에 대한 주지성 요건 완화 여부,손해배상제도의 개선 등에 대한 논의를 하고자 한다.
마지막으로 부정경쟁방지법상에서 보호의 대상이 되는 상표와 상표법상 보호의 대상이 되는 상표와의 충돌 여부 등에 대한 관계 명확화 등에 대해서 논의를 진행하고자 한다.
[현행 부정경쟁방지법의 문제점 및 개선방안 中]
<목 차>
제1장 서론 ···················································································································1 제1절 연구의 배경 및 필요성 ·················································································1 제2절 연구의 내용 및 범위 ·····················································································3 Ⅰ.연구의 내용 ········································································································3 Ⅱ.연구의 범위 ········································································································4 제2장 현행 부정경쟁방지법의 일반적 검토 ·················································5 제1절 부정경쟁방지법의 의의 및 성격 ·································································5 Ⅰ.산업재산법으로서의 규범 ················································································5 Ⅱ.경쟁법으로서의 규범 ························································································7 제2절 연혁 ···················································································································9 Ⅰ.명칭 ······················································································································9 Ⅱ.목적 ······················································································································9 Ⅲ.내용 ····················································································································10 제3절 현행 부정경쟁방지법의 구성 및 내용 ·····················································13 Ⅰ.부정경쟁방지법의 구성 ··················································································13 Ⅱ.부정경쟁방지법의 주요 내용 ········································································15 제3장 주요국의 부정경쟁방지법제 ·································································22 제1절 독일 ·················································································································22 Ⅰ.개요 ····················································································································22 - ii - Ⅱ.경쟁상대 노력의 모용행위 ············································································39 Ⅲ.일반적 시장방해행위(시장교란행위)····························································42 Ⅳ.공공기관의 경쟁행위 ······················································································45 제2절 일본 ·················································································································46 Ⅰ.개관 ····················································································································46 Ⅱ.부정경쟁행위 ····································································································47 제3절 미국 ·················································································································52 Ⅰ.미국법상의 부정경쟁행위 ··············································································52 Ⅱ.미국 연방법상의 부정경쟁방지법 ································································55 Ⅲ.캘리포니아주 부정경쟁방지법 (California'sUnfairCompetitionLaw:UCL)··········································56 Ⅳ.소결 ····················································································································59 제4절 중국 ·················································································································60 Ⅰ.개관 ····················································································································60 Ⅱ.부정경쟁행위의 유형 ······················································································61 Ⅲ.구체적 사례 ······································································································65 제4장 현행 부정경쟁방지법의 개선방안 ······················································70 제1절 일반조항 ·········································································································70 Ⅰ.일반조항 도입의 필요성 ················································································70 Ⅱ.일반조항 도입 논의 ························································································72 Ⅲ.일본에서의 논의 ······························································································73 Ⅳ.독일에서의 논의 ······························································································80 Ⅴ.법률 개정(안)····································································································85 제2절 부정경쟁행위 유형별 재검토 ·····································································87 Ⅰ.과실 책임주의 ··································································································87 Ⅱ.희석화(적용범위 확대)····················································································91 Ⅲ.사이버스쿼팅의 주지성 완화 ······································································100 Ⅳ.손해배상제도 개선 ························································································102 Ⅴ.신용훼손 행위(신설)······················································································106 제3절 상표법과의 관계 ·························································································108 Ⅰ.의의 ··················································································································108 Ⅱ.상표법과 부정경쟁방지법의 전통적 상호관계 ········································109 Ⅲ.주지상표와 등록상표의 병존과 권리분쟁 갈등 ······································112 Ⅳ.불합리한 결과 혹은 상호모순 초래 ··························································113 제5장 개선방안 검토 및 개정을 위한 제언 ·············································115 <참고문헌>··············································································································124 <참고 1>부정경쟁행위에 관한 판례 ··························································127 <참고 2>일본 부정경쟁방지법 ·····································································169 <참고 3>독일 부정경쟁방지법(UWG)·······················································188 <참고 4>중국부정경쟁방지법(中華人民共和國反不正當競爭法)·····207
지재권 연구 및 보고서 
