지식재산권 침해로 인한 손해배상책임에 있어서 무과실책임의 법리 도입 필요성과 그 방향

Abstract

Intellectual property rights are based on protection of intangible information, so it is difficult to determine the scope of the rights or whether they are infringed. In this regard, there are presumption provisions of negligence in the Patent Act, etc. However the Supreme Court does not accept the revocation of the presumption of negligence. Japan, which served as a reference for our law, had a long discussion about the legislative direction of the rule before introducing the negligence presumption rule in the 1959 amended law. It was the intention at the time of the legislation to recognize the revocation of the negligence presumption. However, after the legislation, Japan did not recognize the revocation of the negligence presumption. These interpretation standards do not fit the law of presumption. Therefore, the introduction of the principle of a absolute liability should be considered. In addition, if the principle of a absolute liability is introduced, it is legislatively made clear that liability for damages is recognized even if there is no cause attributable to the infringer, and the same provisions for calculating the amount of damage applies to a absolute liability, but the point of on fault should be taken into consideration.