직무발명 보상금 청구권의 소멸시효에 관한 법률문제

Abstract

This article review the Extinctive Prescription for the “Right of Remuneration for Employee’s Invention” (Hereinafter, “REI”). In the field of practice, the period of extinctive prescription for REI is deemed 10 years and starts on the date when employee transfers inventor’s right to employer. The starting point of extinctive prescription for REI may differ depending on the parties contract for the time of payment. However, the extinctive prescription of REI shall be determined balancing interest between employee and employer, as well as taking account of legal stability and predictability, international trend and harmonization with relevant domestic statutes. In terms of theory, REI is basically a contractual claim between employer and employee. The right to claim fair remuneration provided in Art. 15 of Invention Promotion Act is mere a compulsory modification of private contract for the sake of employee protection. Hence, REI shall be characterized as a commercial claim on which the commercial extinctive prescription period of 5 years is applied. On the other side, for substantial protection of employee, her realization of capability to claim shall be the conditions to start extinction period, other than simply considering the emergence of aforementioned objective events. In international perspective, Germany, France and Japan regulates the extinction period of REI as 3 to 5 years, considering the cognition of employee for the beginning of said period. This is an attitude to reflect the character of REI: that the amount of remuneration is to be definitized in ex-post manner after the invention is actually used or transferred. Ultimately, it is desirable to amend Invention Promotion Act to accommodate said discussion, but the same goal may be accomplished by reasonable interpretation of current provision of the Act and relevant precedents.