지식재산권의 부당행사 규제에 관한 연구(하)

Recently, intellectual property rights(hereinafter 'IP rights') are increasingly protected by advanced nations as a tool to boost national wealth. While some of the rights holders are taking advantage of such tendency, at the same time, they are also causing problems by obstructing subsequent technology innovations. Consequently. it is necessary to reinvestigate the scope of protection. As a matter of fact, discussions on the misuse of IP rights are being revived as courts render cases on this issue. Current discussions on the misuse of IP rights deal with miuse doctrines under the traditional civil law as well as issues concerning with antitrust law. The lack of clear analysis, however, reflects the need to clarify this issue. Until now, commentators focus on the comparison between IP misuses recognized in some cases with abuses of rights under the civil law, emphasize the necessity of acknowledging the misuse of IP rights as a separate category, and review relevant legislations in Japan. Presently, there is a strong need to reexamine the constitutional nature of IP and its related issues and to enact legislation based on such findings. For such purposes, this paper first investigates the well-known cases concerning IP misuse and legislations of Japan and analyzes the elements presented in the cases. Next, the issue of whether or not the conventional ownership rights that applies to the abuse of rights under the civil law are proper for the IP rights is discussed. Under the umbrella of the constitutional protection of IP, the paper suggests that the term ‘unfair uses’ is more appropriate than the widely used term ‘misuse.’ Third, through full-scale discussions about the relation between IP law and antitrust law, it will be evident that the two laws are not contrary to each other but rather possess the common statutory objective. Moreover, both laws act as the theoretical ground for enacting antitrust provisions in IP law. Fourth, attempts to establish a specific legislative standard is made based on cases and issues concerning antitrust law. This paper combines the issues of constitutional law with the term ‘unfair uses’ under the umbrella of Korea’s legal system and suggests the possible solutions through legislative enactments that will provide assistance to future concerns presented in the amendments to the IP law. At the end, though the discussions, this paper will clarify legal effects that will enhance predictability, provide assistance on making policy decisions concerning the industry sector, and simplify litigation procedures as arguments of violations of antitrust laws are brought into the intellectual property realm.