직무발명제도 개선을 위한 발명진흥법 제15조 제6항 단서의 해석 및 개정 방향

Abstract

In the case of an employee's invention, the key issues are the attribution of rights and the reasonable compensation issue if the rights are vested (originally or successively) in the employer. Currently, korean law fundamentally vests rights in employees and recognizes the prior succession agreement of the rights with the employer, but legislates that rights are vested in the employer only after certain procedures are completed regardless of the content of the agreement. In such a situation, even the calculation of the compensation amount is uncertain and arbitrarily interpreted and applied as in law before amendment, which runs counter to the strengthening of technological competitiveness of the employee invention system and industries based on it and the development of the national economy. Korean law faced the problems of the former employee’ invention system and revised the Invention Promotion Act in 2006 and 2013, respectively. If a sufficient consultation process has been held between employers and employees to determine the amount of the reasonable compensation, the amount of compensation determined accordingly can be regarded as justifiable compensation. However, even under the current law, the proviso to Article 15, Paragraph 6 requires substantive justification, saying that the amount of compensation must take into account the benefits to be gained by the employer from the employee’s invention and the degree of contribution of the employer and employee to the completion of the invention. Considering the circumstances and purpose of the revision of the law, it is sufficient to review whether user interests and parties' contributions have been considered. The legitimacy of the amount so determined must be left to the autonomy of the parties. However, even in the current regulations, provisions regarding substantive legitimacy still remain. Therefore, in order to protect employees, there remains room to consider the reasonableness of the compensation amount as a determining factor in addition to the procedural guarantee as before. If so, this issue will ultimately have to be resolved through legislative revision. First, the proviso to Article 15, Paragraph 6 is moved before the content of the agreement in Paragraph 3 of the same Article. Second, the regulation should be revised to say ‘maximum effort must be made to be considered’ rather than ‘consideration’. Third, ultimately it is revised to respect the autonomous decisions of employers and employees by deleting the proviso to Article 15, Paragraph 6.