Recent Enforcement of Unfair Competition Act and its legislative Implications

‘Unfair Competition Prevention & Trade Secret Protection Act’(hereinafter referred to as the ‘Unfair Competition Law’) of Korea has been enacted in 1962 upon the legislative model of German Law(Gesetz gegen den unlauteren Wettbewerbs, UWG). With the upcoming growth of market economy, this law has been revised almost yearly to meet ever changing unfair method of competitions in various markets. This paper is designed to make an overview of recent enforcement of Unfair Competition Act, identify its issues in interpretation, and then envisage possible solutions on both judicial and legislative policies. For this purpose, we analysed most of Korean Court decisions rendered in last 5 years both civil and criminal, and searched monographs and articles and materials available in Korea. In doing these works, we tried to maintain an eye of comparative law and keep abreast with global tendencies in fighting against various practices of unfair competition. We made a full note of unique parallelism between German law tradition of ‘Unfair Competition Act’ and US style unfair business practice regulation by ‘Anti-monopoly & Fair Trading Act’ in Korea. We also made a warning opinion on increasing administrative interventions by Patent Office on unfair competition cases which are basically of civil law implications. As is well known, German UWG allows only civil remedies in court and BundesKartelAmt does not engage in these matters. Regarding the traditional unfair competition cases, there has been three consecutive decisions in 2020 by Supreme Court(BTS photo magazine case, Golfzone case, Hermes eyeball-bag case) applying supplementary general provision of Unfair Competition Act Article 2.1.(m) adopted in 2013. With these decisions, we are expectant of a more elastic enforcement in combating not yet precedented unfair methods of competition. Upon the ‘infringement of trade secrets’, statutory wording of ‘considerable effort to maintain its secrecy’ was revised into ‘reasonable efforts to maintain its secrecy’ in 2015, and then finally into ‘managed as a secret’ in 2019 to allow better protection of trade secrets. However, it seems that these legislation has been too much intervention into the realm of interpretation. So far, judicial decisions and dogmatic theories are not able to provide clear criteria in differentiating relaxed confidentiality requirements.