國際知的財産訴訟原則의 定立 - 한국의 입장에서 -
Principles on Transactional Intellectual Property Litigation: From Korean Perspectives
손경한
초록
This paper aims to review the efforts to establish the principles on transactional intellectual property litigation by the American Law Institute("ALI"), the Max Planck Institute("MPI") and other organizations form Korean perspectives. In May 2007 the ALI has finalized the remarkable works of drafting the principles for the issues of jurisdiction, choice of law and judgment recognition and enforcement in transnational intellectual property disputes. However, it is too big and complicated for the continental businessmen and lawyers to understand and digest the logic and contents of the ALI principles. In drafting the Korean version of the principles, the Korean group has paid attention to the following points: (1) To draft the principles which are relatively simple and therefore, can be easily accessible and understandable. (2) To draft the principles which will meet the needs to solve transnational intellectual property disputes in the global and network economy in the 21 Century: (3) To draft the principles which are competible with the continental legal system that is adopted by the most European and East Asian countries. (4) To provide legal rules for resolution of transnational intellectual property dispute by alternative dispute resolution("ADR"), i.e., by arbitration which is preferred by the businessmen who are involved in international or electronic commerce. In drafting the rules on international jurisdiction, it is recognized that the traditional approach based on territoriality is hard to maintain. In lieu of territoriality, the agreement and contacts of the parties to the forum state are determinative factors for the issue of jurisdiction. The court agreed by the parties shall have jurisdiction not only on the disputes related to contract or infringement of intellectual property but also on the disputes regarding existence or validity of intellectual property although, in the latter case, the judgment rendered by the court agreed by the parties shall be binding and effective only between the parties unless the judgment of the court on the dispute would otherwise have effect erga omnes. Consolidation of multiple claims or claims against multiple defendants may be allowed in the limited circumstances where those claims are so closely connected that they should be adjudicated together for the efficient plus just resolution of the disputes. As to the conflict of laws rules, it can be divided into there categories, i.e., (ⅰ) the intellectual property which must be registered to be valid("registered IP"), (ⅱ) the intellectual property which need not be registered for validity and protection("non-registered IP") and (ⅲ) the initial ownership question for the non-registered IP. While the disputes regarding registered IP shall be governed by the law of the country where the IP has been registered, the dispute regarding non-registered IP can be governed by the law of the country for which the protection is sought. As to the issue of the initial ownership of the non-registered IP, the law of the country of origin will govern the issue. Any adjudication rendered by the competent court shall be respected by other country's court and, therefore, recognized and enforced without review of substantive issues. Enforcement of judgment having punitive nature may be rejected in consideration of the nature of the private international law. As to the IP dispute resolution by ADR such as arbitration, the above discussions regarding jurisdiction and enforcement of judgment would be applicable. The spirit of party autonomy should be more respected in ADR than in litigation. The author hopes that the principles drafted by the Korean group with more progressive perspective than the principles of MPI and ALI would have certain positive impacts on the rule makers for fair, speedy and suitable resolution of transnational intellectual property disputes.