지적재산권신탁의 한계와 활성화 방안－일본신탁업법상의 제도와 비교를 통하여－

Abstract

This article is to discuss “Corporate Group Trust” which is to effectively manage the intellectual property of corporate group and “TLO Trust” which is to transfer technology. In case of intellectual property trust, delegation of some of trust affairs to third parties may need to be allowed to meet with the trustor’s interests and also to activate intellectual property trust. Such cases would be where the trustee of Corporate Group Trust and TLO Trust for transfer of technology discussed in this article is a licensed trustee business entity. However, the Capital Markets Act prohibits trustee to delegate trust affairs to third parties. Accordingly, it is necessary to amend the Capital Markets Act to allow delegation of trust administration to third parties (i.e. outsourcing). Korea has not adopted Corporate Group Trust system. Corporate Group Trust system has a distinctive character from other ordinary trusts that trustor, trustee and beneficiary are all within the same corporate group. This type of trust does not need to mandate strict entry requirements or conduct regulations on trustee. Considering this, it would be important to lower entry requirements and conduct regulations on trustee so that corporate group can manage intellectual properties owned by its affiliates more efficiently, not only for a particular corporate group but also for Korea to enhance its national competitiveness. For TLO Trust, whereas the government supports superior ones among technologies entrusted to technology trust management organization with a part of expenses to protect the rights such as patent fees, there is no such support for technologies entrusted to trustee. If technology has been entrusted with the same purpose and is also superior one, differentiating governmental incentive depending on who is trustee, let alone regulatory arbitrage, may have issues of equal treatment. Therefore, even if trustee is a licensed trust business entity, it shall be provided with incentives same with the case where the trustee is the technology trust management organization, which will also contribute the activation of intellectual property trust.