무체재산권⋅지적소유권⋅지적재산권⋅지식재산권 - 한국 지재법 총칭(總稱) 변화의 연혁적⋅실증적 비판 -

The generic term in Korea which is to be used for the entire intellectual property law has continuously changed in the order of Intangible Property, Intellectual Property, Intellectual Valuable Rights, Knowledge Valuable Rights since the colonial period under Japanese rule. The first term “Intangible Property” which had been originated from Germany was forcefully implanted on Korea during the Japanese rule and is not adequate because it makes a confusion easily as if it included the contractual and tortious right. The second term “Intellectual Property” emerged as the strong influence of the US when all the Korea intellectual property laws dramatically changed with no other option under the pressure linked to free trade benefit by US in 1986. Since around 1990, Korean Patent and Trademark Office led to move on to the next generic term “Intellectual Valuable Rights” which has been most widely accepted in Korea. Then the so-called Framework Act about intellectual property, which came into effective in 2011, makes mandatory using the new “Knowledge Valuable Rights” term at this time. The above term “Intellectual Property” misses the existence of a kind of limited real right system for exclusive use and etc. which exists in Korea law unlike that of US. while the term grasps exactly the characteristic of intellectual property as property. The “Intellectual Valuable Rights” overlooks the fact, unlike in the real world, the contractual and tortious rights indigenous to the intangible world which was parallel to the property right are actually hard to exist, though it embraces almost all protected subject without missing. The new term “Knowledge Valuable Rights” has the same flaw in this point. This article review that there has been a serious confusion especially to the outsiders of the intellectual property law because the generic term has been changed frequently, by presenting empirical evidences in a very detailed manner for specific legislative and judicial errors. Most of all, the inconsistency in the current statute where all the above four generic terms are still remaining valid in each own clause should be corrected. Also, too frequent changes in generic term even makes younger scholars in IP or seniors in other majors suffered from inefficiency in finding the preceding articles. The right generic term for IP is not only the concern of Korean intellectual property insiders but also the sign with which the outsiders discern the Korean IP law from other parts of the entire Korean legal system. If there is a firm social consensus, any term among Intellectual Property, Intellectual Valuable Rights and Knowledge Valuable Rights will be good and the cost will easily exceed the profit due to unnecessary chaos if we would allow the another change just because of a relatively minor blemish on the term. In that regards, the opinion in Japan or Korea which proposes the another term change from “Intellectual Valuable Rights law” to “Intellectual Valuable law” on the ground that the Unfair Competition Prevention Act does not grant any right seems unreasonable. It’s because the opinion is contradictory to the general principles about the concept of rights in civil law or there has been no solid tradition which limits the concept of right only to a kind of real right. In addition, it is more appropriate to call “Intellectual Valuable Rights law”, not “Intellectual Valuable law” because the legal logic in the Korean civil law system is different even though the intellectual property law in United States is named as just “Intellectual Property”, not “Intellectual Property Right”. In conclusion, for any reason, another change of generic term for the Korean entire intellectual property law in future should be avoided by all means.