지식재산권 관련 부당이득 분쟁에 대한 쟁점별 고찰

There is no provision about the unjust enrichment in the intellectual property law. But the unjust enrichment principles in the Civil Law are also applicable to the intellectual property cases for balancing the unfairs in the property changes, when the intellectual property right is deemed as a person's property and when the person enriched gets any profit and it causes any damage to the intellectual property owner. This paper discusses the issues of the unjust enrichment on the intellectual property rights with the Civil Law principles. In other words, for the beginning it illustrates the principles of the Civil Law, and then it researches how the principles be applied to the intellectual property rights cases. Firstly, it considers the unjust enrichment with the classification(the giving unjust enrichment and the infringing unjust enrichment), and the usefulness of that. The usefulness is that there is no need to distinguish good or bad faith of the person enriched because the repayment amount under the giving unjust enrichment is already decided by its expressed legal relationship. While the repayment amount under the infringing unjust enrichment is different from the enriched person's good or bad faith. Secondly, it considers the burden proof of no legal ground with the classification again. There is no argument under the giving unjust enrichment that the plaintiff has the burden of proof. While there are arguments under the infringing unjust enrichment on the claims for reimbursement. The both reach a conclusion that the person enriched has the burden of proof. However, it inclines to the opinion that the no legal ground is deemed as the defendant counter-argument at the actual cases. Thirdly, with regard to the illustration problems between the article 201 and the article 748 about the repayment amount, it analyzes the legal nature of the fruits acquirement rights of a good faith person, the relationship between the fruits acquirement rights and the remaining enrichment. The result is that, when the invalid patentee deemed the registered patent as his rights and got the royalty through the license contract, the legal principles of fruits acquirement rights should be applied to such royalty. Fourthly, it analyzes the relationship between the tort claims for the damages and the unjust enrichment claims for the repayments. The related cases are almost about the infringing unjust enrichment. And the two claims coincide when the cases are on the proof of the deliberation(or the mistake) or on the extinctive prescription. Under these circumstances, there is no reason to distinguish the two claim's repayment because the claims for the unjust enrichment and the claims of tort are the same. Finally, in the conclusion of this paper, it gets the intellectual property cases into shape with the unjust enrichment principles of the Civil Law.