지식재산권의 준거법에 관한 우리나라 판례의 검토

Intellectual property rights is treated as one of the big topics in international trade due to its international nature in modern society, and as new legal areas, it is becoming more important. Intellectual property rights have broken rigid territoriality and have an extraterritorial effect. In recent years, intellectual property law has paid increasing attention to issues of private international law such as jurisdiction and choice of law. Major issues in applicable laws of disputes of intellectual property rights involving foreign elements are; ① the litigation concerning the grant, registration, and validity of intellectual property rights, ② the infringement stop and litigation claims for infringement of intellectual property ③ international intellectual property licence agreement. Above issues are generally resulted in the principle of lex loci protectionis, but the principle of lex loci protectionis is partly under the reasonable modifications by the new changes in the internet developmental environment. And in the case of licence agreement, if there is no agreement on the applicable law applying to the intellectual property licensing contract, we can decide the applicable law depending on the fact that who carries out the characteristic performance of the contract. Article 24 of the private international law of Korea stipulated that “the protection of intellectual property rights is by the infringement law” in 2001, it is evaluated to declare the principle of lex loci protectionis. After that, the courts's precedents related to intellectual property rights of foreign elements have been accumulated, it shows that the courts have determined the applicable law to meet the intent of Article 24 with stability after trial and error for several years. But, the number of Supreme Court's decision related to intellectual property rights of foreign elements is not sufficient, under these circumstances, the attitude of the Supreme Court's precedents about the lower courts' mixed decisions is being watched The attitude of the Supreme Court that are interested in the future, towards the interpretation of Article 24 are; ① what is the meaning of place of infringement, ② what's the range for application, that is, whether it's limited on the infringement of intellectual property rights or it's applied to overall range of intellectual property rights, ③ wether Article 24 covers only the non-registration-related intellectual property rights, or includes registration-related intellectual property rights,④ if the infringement of intellectual property rights in cyberspace arise, what will be the Supreme Court's attitude towards this kind of cases, ⑤ if intellectual property agreements are infringed through tort, can it be governed by the Article 32, paragraph 3 of the private international law of Korea. And in connection with the debate on the scope of Article 24, revision work is needed that can be clearly understood that the Article 24 is applied to overall range of intellectual property rights. Intellectual property rights dispute meets a new environment, unexpected in the past, and we need to come up international unification baseline scenario on the selection criteria on the law applicable to intellectual property disputes. We need to interpret Article 24 of the Private International Law in accordance with the direction of international trends and development on governing law of intellectual property rights, and when needed, revision or new legislation of private international law is desirable.