위법행위에 대한 금지청구권의 연구

Study of Prohibitory Injunction against Unlawful Act-focusing on the issue of unlawfulness judgment-

It may be injunction and damages that are two major remedial measures to enforce private laws. Damages have a function to compensate a victim s losses on the case of the infringement of its entitlement not only under common law jurisdictions but also under civil law jurisdictions. On the other hand, the underlying idea of injunction is that someone faced with imminent damage must be able under the law on non-contractual liability to take positive action to prevent the damage from happening. So prevention is better than cure. But, courts in Korea vest a plaintiff with injunctive relief only if he or she succeeds in proving the violation of his or her proprietary rights or quasi proprietary rights except for the rights created by statutes to furnish an injunctive relief. The Korean style enforcement of an injunctive relief shares its common characteristics with other civil law countries. It is strongly required that the basis for new rights should be foreseen. The Supreme Court of Korea previously held that the remedy in tort is, in principle, limited to monetary damages and, thus, was reluctant to grant an injunctive remedy against an illegal act. However, in its August 25, 2010 decision, the Supreme Court of Korea has acknowledged the relief of preventive claim on the part of the unfair competition. It held that if one who infringe the interest which is needed for the protection by the law, misusing fruits which the competitor has constructed for a long time with considerable effort, his act would be tort. Furthermore, one who has been infringed by such infringement can apply the injunction for unfair act and tort. This judgement is the first step toward the acceptance of injunction as the effect of tort in Korean civil court. However, this judgement did not make clear whether or not it is needed for the subjective element, for example negligence, regarding the concrete elements. Like a claim for injunction on real right, subjective element is not needed for injunction. It is easy to predict that all kinds of remedial measure can be provided if the rights are violated. So, the practice of common law in an injunctive relief has a considerable implication to the application of injunction in Korea. And Illegality of a tort under Korean Civil Law is understood as a theory of correlation that it should be decided through interrelation between kinds of inflicted interest and those of inflicting acts. And so called a “stage theory of illegality” that illegality in exercising claim for prevention based on Article 217 of Korean Civil Law should be severer than that of claim of indemnification for damage based on tort, Article 750 of Korean Civil Law, which needs to be accepted in that claim for prevention directly prevents the social and economic activity of an obstructor compared to claim of indemnification for damage by money.