브랜드 사용료 부과행위에 대한 형법상 배임죄 적용

Abstract

Recently, a decision of the court on the possibility of applying for breach of trust under criminal law on brand royalties have begun to brake people’s own customary or conventional autonomous brand royalties. The cases in which the application of breach of trust under criminal law were discussed can be divided into two types: first, It is the case in which the CEO registered the franchise trademark in his personal name and acquired trademark royalty from the merchants. Secondly, It is a case of unfair support for affiliates using corporate brand ownership and royalty charges. To establish breach of trust under criminal law, the person who handles the affairs of another person is found to be in violation of his or her duties by acquiring a profit on property or by causing a third party to damage it. In order to establish a breach of duty in order to establish a breach of duty, it is necessary to determine whether the behavior referring to brand royalties are expected under the specific circumstances such as the content and nature of the affairs handled. The criteria to be considered in judging the specific situation such as the content and nature of office work are: 1) attribution of brand ownership and 2) adequacy of brand royalty. Regarding the charging of brand royalties, the act of assigning the brand royalties to individuals or companies other than the legitimate owners of the brand is considered to be a violation of duty. Next, in order to establish breach of trust based on the adequacy of the brand royalty, the normal price or standard of the brand royalty in a market is required. However, there are currently no objective criteria for brand assets and royalty rates, and brand royalties are generally autonomous according to various factors such as industry, product, brand awareness, and market type. In this paper, we examine whether it is possible to calculate the appropriate criteria of brand asset evaluation and royalty rate based on the characteristics and legal characteristics of the brand, and discuss whether it is feasible to criminally regulate the imposition of royalties and the establishment of royalty rates in the future.