방송의 상행위성에 관한 연구

Research on Commercial Activity Characteristic of Broadcasting

Commercial activity is the fundamental concept of commercial law. Recently efforts have been made to amend to include broadcasting in catalogues of fundamental commercial activity enshrined in Article 46 of commercial law. On January, 5, 2009, Amendment Special Subcommittee of Commercial Law under Department of Justice, submitted the partial amendment to commercial law to the national assembly. The reasons to revise the commercial law are spelled out in the preamble of the partial amendment that they are to compensate the defaults of the current commercial law and to clarify legal relations by means of firstly adding up such new lists of commercial activity as broadcasting and taking over payment duty, which reflects the changing reality, and secondly lessening strict liability burdened unrealistically on public entertainment business owner and thirdly regulating ,more specifically, legal relations of new kinds of commercial activity like lease, franchise and factoring. In short, this partial amendment to commercia law address the pertinent rules of boosting-up economy. Above all, the proposed amendments to commercial is entitled to great weight on its practicality that it is reasonable to supplement broadcasting and payment agency business to the lists of commercial activity provided on Article 46 of commercial law since the digitalizing trend, which generates the introduction of new kinds of broadcasting and the fusion of broadcasting & telecommunications and the advent of the credibility society and Internet, increasingly has driven related industries toward important status in economy. However, On April, 2010, broadcasting was omitted from the new lists of commercial activity during the consideration of bill due to the fact that in broadcasting the nature of public interest is more valued than that of profit-making. These efforts and failures to legislate to include new catalogues of commercial activity specify that there is ongoing objection among legal scholars as to existing opinion that broadcasting can not be regarded as one of fundamental commercial activity due to its nature of pubic interest. Upon the whole, I am also of opinion that existing opinion should be prudently reconsidered. In particular, I cannot too much emphasize the significance of commercial activity in the aspects that deciding the kinds of commercial activity is same as limiting the application extent of commercial law since a majority opinion express that the categories of commercial activity covered by article 46 of Commercial law are evaluated as limited enumerations not as examplary enumerations. As criticized on the course of bill examination, it is neccesary to reconsider carefully on the decision that broadcasting can not be listed as one of the commercial activity because of its nature of public interest. One of the most influential reasons why broadcasting previously has not been accepted as a commercial activity lies in the fact that the system of broadcasting should be operated for the pursuit of public interest. But this reason needs to be reexamined whether it is rational argument for the present era of high development of information and technology. Accordingly, reflecting critics and concerns as shown above, this these focused on the commercial activity characteristic of broadcasting on the grounds of its nature and essence and restriction system.