營業利益의 侵害와 違法性

The Judgement on Illegality of Injury to Business Interests

The issue of the tort liabilities on business interests has important meaning in national economy. However, it is not simple to define its concept and the boundary of obligation of the injury due to the following characteristic trait of business interests. That is, limitations on business interests are unavoidable under market economy, and the types of injury are various and complicated. In fact, direct or indirect injuries to other business themselves are not torts under market economy. Nevertheless it is generally recognized that infringement of a business interests through unfair competition should be regulated. In that context, business interests has been protected by the application of a special statute on unfair competition. But, these are not sufficient for covering all matters of a business interests, either. Rather, injuries of a business interests should be fallen under the control of civil law. Such ideas have already realized in Germany and Japan. German courts recognized a business interests as legal rights in 1904, since then a great number of theories and decisions leading injury of a business interests as legal rights to tort laws have been accumulated. Japanese courts made decisions accepting the damages based on tort laws as well. The Korean civil law has solved the problem regarding the scope of protection through excluding injury of legal rights from legal components that is generally required in torts. Considering the abstract meaning of business interests, however, another problem of illegality judgement remains. Business interests as legal interests of tort law is not easy to be defined because of its metaphysical concept. However, this concept may include detailed and general business practices, as well as the reputation of the undertaking estimated to be important in recent years. But liabilities of torts should be limited by applying “business relation not so as to excessively extended. Here, the concept of “business relation can be classified into “target relation , “relation inevitability and “typical risk . In order to protect a business interests, it is necessary to set a standard of judging the illegality based on the types of injuries. Judgement on the legality of business interests depends on whether or not the issue of the protection of a business interests is caused by the competitive relationships.