통신판매업자의 불법행위에 대한 통신판매중개자(오픈마켓)의 책임

Responsibility of Open Market for Torts of a Dealer in Internet Market Place

The court judged two tort cases of electronic commerce dealer recently. In "Hinoki" case the court decided 'open market'(an intermediary between the dealer and the consumer) should share the responsibility for violation of trademark right with the dealer. However in "K-2" case the court judged directly opposite to the former case, open market does not take the joint liability with the dealer who has ventured unfair competition. In K2 case the court made two mistakes, the one is application of electronic commerce consumer protection act §20 to violation of trademark right by a dealer and the other is denial of a general duty of 'open market' to protect of a right of others in spite of network act §44 ②. My opinions of the responsibility of 'open market' for violation of trademark right with the dealer are as followings; ⓐ The open market should burden a general duty to protect of a right of others by a dealer. ⓑ When the open market may receive a notice of violation of a right, he should delete the information which violates a right or take a tentative measure. ⓒ At the same time he should come into action not to search the other goods which contains the information. ⓓ However he should burden a duty of filtering.