知的財産權의 流動化를 위한 法的 改善方案

Abstract

Asset Backed Securitization(ABS) can offer a variety of financing and economic opportunities to firms, university laboratory and individuals, etc. It converts subprime assets or cash flows into marketable securities and especially increases liquidity. The transaction can make the overall cost of financing reduced. In addition, it is recorded as an off balance sheet transaction which is considered an important indirect benefits to originators. The total known volume of intellectual property securitization in recent years has increased in U.S, Japan and other advanced nations. However, intellectual property securitization has not been used as a method of financing as yet in Korea. In Korea, Trust Business Act revised in 2005 defines that intangible property right including intellectual property right can be deposited, laying the legal foundation of beneficiary certificate issuance while trusting knowledge-based property. Nevertheless, it needs further research as it has complicated legal structure for securitization as well as trust of intellectual property right due to its distinctive features. This thesis suggest the major points of the new law as a functional law that integrates all the previous related laws and examines a number of possible implementation and legal issues for the securitization of intellectual property right. Intellectual property right requires professional and complex knowledge for valuation, it is more economical and efficient to depute to specialized trustee institutions. Therefore, each company including group-based or venture capital needs to manage their intellectual property right by trusting to specialized depository companies. While trusting intellectual property right, companies are able to securitize by issuing beneficiary certificate for funding purpose. As a funding unit is small sum, it can be privately equitized and protection measures for investors should be put in place. When knowledge-based property is securitized, substantial right should be given to trustee for management and operation of trusted property. Secondly, both impartiality and loyalty duty are required to avoid conflicts regarding profit between dual trusts. Thirdly, disclosure requirement should be imposed to intellectual property backed securities. This dispelled disputes over whether a trust company can engage in self-dealing under the Trust Business Act, the commercial Act and the Civil Act, and makes it possible for an originator engaged in trust business to perform ABS in two ways: the trust company can entrust the securitization asset which it already possesses to its trust account or it can also purchase the securitization assets into its trust account with trust funds from investors. A trust is a relationship in which a person or the trustee holds legal title to the trust property or trust corpus, but is bound by a fiduciary duty to exercise that legal control for the benefit of one or more individuals or the beneficiary, who hold “beneficial” or “equitable” title. The trust is governed by the terms of the usually written trust agreement and local law. The entity(one or more individuals, a partnership, or a corporation) that creates the trust is called the settlor. However, the present trust act and trust business act are not sufficient to securitize trust property including the intellectual property right. Therefore, both acts require considerable revision and improvement. This thesis is suggesting a way to improve both trust act and trust business act by presenting a system that will settle the trust act into the form of general law. Lastly, This thesis especially is emphasized on the legislative suggestion of related Act for the purpose of securitization of intellectual property right in korea.