The general clause for unfair competition practices, prescribed at the present version of Unfair Competition Prevention Act (UCPA) Section 2(1) under subsection of Pa, was introduced in July 30, 2013 with an aim of coping with novel types of unfair competition practices that appear with technical development. The abstract and comprehensive nature of the clause has led to the discussions to its proper range of application and how to form its relationship with other intellectual property laws. The Supreme Court of Korea came up with concrete standards of this general clause in so-called Golfzon case (Supreme Court Decision 2016Da276467 decided March 26, 2020) after 6 years of the enactment of the clause.
This case is monumental not only as the first Supreme Court case specifying the standards of the general clause, but also in that it showed the proper viewpoint of the Supreme Court as to interpretation as a torts clause regarding the requisite such as ‘outcomes’ and ‘other person’. However the case has exposed its limitations in terms of its perspective related to the basic nature and principles of the general clause. As discussed in this article, the history and the background of the legislation of the general clause shed light on its feature of torts law. Meanwhile, the Supreme Court, in the subject case, diluted its characteristics as torts law by focusing mainly on ‘outcomes’ rather than the illegality of the behavior, as well as lacking proper care by employing the term ‘rights holder’ which is based on the notion of intellectual property rights and cannot be an adequate term selection for the general clause of UCPA which belongs to torts law and behavioral regulation. Such limitations of the subject case in reinforced by insufficient presentation of standards and analysis to the illegality of the behavior. Further, the Supreme Court failed to correct the errors of the trial court’s decision where no proper considerations are given to the structural distinction of the case in which the interests of the creator and investor are divided and under competition. Such errors stood out in the trial court’s analysis on issues of fair use. By doing so, the subject case made room for further disputes with the copyright owners of the golf course and left controversy on redundant damages. This article studied such limitations of the subject case with critical thoughts on the proper course of interpreting and applying the general clause of the UCPA and how to form its relationship with other intellectual property laws including copyright law.