직무발명 보상금 산정의 법적 문제들에 대한 검토와 제언

Abstract

The aim of this article is to review legal practice of remuneration for the employee invention and to provide suggestions of corrective measures. To that end, sixty-seven court cases involving remuneration issues were searched and analyzed as a whole. The proposals for improvement are as the following. (1) Courts shall prioritize the remuneration between employer and employee on the contractual basis other than intervening and readdressing the amount of compensation. Although the provision of Employee Invention Act articulates that the contractual remuneration qualifies legal compensation as long as such remuneration is judged to be made under due procedures, it has been judicial practice that the court reviews all the cases brought and orders adjusted payment for the sake of employee. However, this practice not only conflicts with the law but also brings excessive business risk to the employers exposing them unpredictable and constant threat of suit by the employees. Hence, it is desirable for the courts to filter out the cases where the autonomous remuneration is made under due process of contract and the amount of which has minimum rationality. Courts shall selectively focus on the cases that dissatisfies said conditions or the amount of compensation is unjustly small compared with the value of the invention. (2) ‘The attribution rate of exclusivity’ shall be distinguished from ‘the attribution rate of invention’. The former is the size of contribution that legal exclusiveness of patented employee invention leads to the amount of employer’s sales, while the latter is the actual/technical power that influences to the sales. For the convincingness and logical clarity of the judgement, it is desirable to take hold of the tendency to mix those in a single standard. (3) The practice to multiply conceptual royalty rate to the amount of employer’s sales to calculate the scale of remuneration shall be reconsidered. In principle, the reference of remuneration shall be the amount of employer’s interest revenue from the sales and shall be calculated under the formula of ‘overflow sales × interest rates’. Applying conceptual royalty rate instead of interest rate is merely based upon the empirical rule of ‘royalty rate ≤ interest rate’ in the field of enterprise. Courts need to perceive this nature clearly and apply royalty rate only as a complementary alternatives of interest rate only where the employee is under hardship to prove interest rate of employer. Through the reflections of aforementioned suggestion courts are expected to move toward better practice in remuneration litigation securing better objectivity and predictability of decisions.