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KCI우수등재 학술저널

경업금지계약의 유효성 판단기준으로서 경쟁

우리 민법 제103조와 미국에서의 논의를 중심으로

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Korean civil law has placed not too much emphasis on competition in the market. In Korea, most debates on competition have mainly been raised in the context of anti-trust laws and unfair competition laws. However, competition almost always pervades transactions between individuals, which are governed by civil law. This is because competition derives from autonomy or freedom of contract that serves as a fundamental principle of Korean civil law. Civil law may be obliged to cover some competition issues that are not associated with antitrust and unfair competition laws. Thus, it is not surprisingly to attempt to revitalize our understanding of competition in civil law. When concerning validity of a non-competition contract, Korean courts have looked at its anti-competitive effects, depending on Korean Civil Law, article 103. Courts have upheld that the article 103 is designed to protect competition and it also can be applied to all kinds of contracts. Nevertheless, courts’ decisions have not provided any standard for determining the effects non-competition contracts have on competition. Rather, they seem to skip it after a comparative analysis between an employer’s legitimate interests and an employee’s interests. Although contract law basically serves to define the contractual relationships between individuals, its focus needs to be extended to concern about competition because contractual relationships converge into a market economy. Moreover, given that Korean Supreme Court has incorporated competition into Korean Civil Law article 103, it needs to focus on the meaning of competition in establishing legal treatment of non-competition contracts. In this sense, this paper develops the meaning of competition in non-competition contracts by appeal to American important scholarly literature. First of all, it is important to define nature of industries in which non-competition contracts accelerate the tension between employers and employees. At this stage, recasting non-competition contracts as a control over intellectual property markets aids in developing the meaning of competition. Intellectual property laws serve to regulate the activities associated with not only creating, but also developing, disseminating, commercializing, and marketing knowledge. Thus, the meaning of competition in intellectual property markets should not be limited to focusing on creation of intellectual property. Placing too much emphasis on its creation leads to granting too strong exclusivity to intellectual property owners. This allows her to shape the market by controlling entry of knowledge-based products into a market. Non-competition contracts may serve as too strong exclusivity in intellectual property markets. That is, they may allow employers to too tightly control the flow of knowledge into the marketplace. It impedes distribution of innovation that can make consumers better off. When understood this way, the meaning of competition becomes more understandable. When courts determine whether non-competition contracts are anti-competitive, they should recognize its function to control and shape the market for intellectual property. And they also needs to focus on how it affects consumer interests.

Ⅰ. 머리말

Ⅱ. 경업금지계약에 관한 우리 판례의 입장: 민법 제103조와 자유로운 경쟁

Ⅲ. 미국의 경업금지계약에 관한 논의

Ⅳ. 경업금지계약의 실질적 효과와 지식재산 시장에서의 경쟁의 모습

Ⅴ. 경업금지계약의 유효성 판단기준으로서 경쟁: 지식재산권과 소비자 이익

Ⅵ. 시사점 및 맺음말

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