In a case where Byung broadcasting company, a terrestrial broadcasting business operator, Gap broadcasting business operator, and Eul broadcasting business operator jointly broadcasted "the result of prediction and investigation by the winner for nationwide and simultaneous local election counting" without prior consent, the case affirming the judgment below that this constitutes an unfair competition act under Article 2 subparagraph 1 (j) of the Unfair Competition Prevention and Trade Secret Protection Act.

Article 2 subparagraph 1 (j) of the Unfair Competition Prevention and Trade Secret Protection Act

Korea Broadcasting System and two others (Law Firm LLC, Attorneys Park Sang-hoon et al., Counsel for the plaintiff-appellant)

EthF Co., Ltd. (Bae, Kim & Lee LLC, Attorneys Hong-tae et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2015Na2049789 decided November 24, 2016

All appeals are dismissed. The costs of appeal are assessed against each appellant.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal Nos. 1 and 2

According to Article 2 subparagraph 1 (j) of the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter “Unfair Competition Prevention Act”), an act of infringing on the economic interests of another person by using the outcomes, etc. achieved by considerable investment or effort of another person for its own business without permission in a manner contrary to fair commercial practices or competition order constitutes an act of unfair competition.

For the reasons indicated in its holding, the lower court determined that the result of the prediction and investigation conducted jointly by the Plaintiffs (hereinafter “the result of the prediction and investigation of this case”) constituted the outcome of the Plaintiffs’ considerable investment or effort, and determined that the Defendant’s act of using the result of the prediction and investigation of this case without the Plaintiffs’ prior consent constitutes an unfair competition act under Article 2 subparag. 1(j) of the Unfair Competition Prevention Act, which infringes on the Plaintiffs’ economic interests by using the result of the Plaintiffs’ investment or effort for the Defendant’s business in a manner contrary to fair commercial practices or competition order.

Examining the reasoning of the lower judgment in light of the aforementioned legal provisions, relevant legal principles, and evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the criteria for determining “performance” as prescribed by Article 2 subparag. 1(j) of the Unfair Competition Prevention Act, fair commercial practices and competition order, the practice of quoted reports, and the legal evaluation thereof, or by failing to exhaust all necessary deliberations, or by exceeding the bounds of the principle

2. Defendant’s ground of appeal No. 3 and Plaintiffs’ ground of appeal

A. The court shall decide whether a factual assertion is true in accordance with logical and empirical rules, based on the ideology of social justice and equity, by taking into account the purport of the entire pleadings and the results of the examination of evidence (Article 202 of the Civil Procedure Act). The facts duly confirmed by the court of final appeal that the court below did not go beyond the bounds of the principle of free evaluation of evidence (Article 432 of the same Act).

In addition, according to Article 14-2(5) of the Unfair Competition Prevention Act, where it is extremely difficult to prove the fact necessary to prove the amount of damage due to the nature of the relevant fact even though damage was incurred in a lawsuit related to unfair competition, the reasonable amount of damage can be recognized based on the overall purport of the pleading and the result of examination of evidence, notwithstanding the provisions of paragraphs (

B. On the grounds indicated in its reasoning, the lower court determined that (1) it is difficult to readily conclude that the Plaintiffs suffered property damage due to the Defendant’s unfair competition act, and (2) on the other hand, the Plaintiffs are liable to compensate the Defendant for property damage caused by the Plaintiffs’ loss of an opportunity to compensate for part of the expenses incurred for the acquisition of the outcome of the predicted investigation in the instant case. It is difficult to deem that there is proof as to the damage equivalent to ordinary usage fees as to the outcome of the predicted investigation in the instant case, and it is reasonable to determine a reasonable amount of damages based on the purport of the entire pleadings and the result of the examination of evidence pursuant to Article 14-2(5) of the Unfair Competition Prevention Act, taking into account the

C. The allegation in the grounds of appeal disputing the determination of the lower court is merely an error of the selection of evidence and the determination of the value of evidence, which belong to the free evaluation of the fact-finding court. In addition, examining the reasoning of the lower judgment in light of the aforementioned legal principles and the records including the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal principles on the occurrence of property damage, the concept of passive damage, the calculation of damages, and the burden of proof, or by failing to exhaust all necessary deliberations, or by exceeding the bounds of

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against each appellant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)