국제라이선스계약의 준거법 결정에서 당사자자치의 원칙과 그 한계: FRAND 선언을 통한 라이선스계약의 성립 여부를 포함하여

Korean law does not have a general definition of license agreements. Most of the licenses are made through license agreements, which are matters governed by contract law. However, license agreements are closely connected with intellectual property law, since they deal with intellectual property rights. In addition, license agreements often have an effect of limiting competition. Therefore, in order to understand the legal relationship of stakeholders over a license agreement, it is necessary to engage in comprehensive analysis of various areas of law including the contract law, intellectual property law, and antitrust law. An international license agreement is one in which there is an international element, i.e., international character or foreign elements, in a license agreement. In this article, the author discusses the principle of party autonomy, which is widely accepted in the determination of the law applicable to international patent license agreements in the context of litigation, and its limits. International patent license agreements constitute an area where the contract law, patent law, and antitrust law intersect. In the case of a domestic patent license agreement, all three aspects are governed by Korean law. On the other hand, in the case of an international license agreement ① the contract law aspect is regulated by the law applicable to the license agreement, ② the patent law aspect is regulated by the law of the protecting country, and ③ the antitrust law aspect is again divided into two sub-aspects: ③-1) the public law aspect follows the territoriality principle subject to an exceptional extra-territorial application, and ③-2) the private law aspect is regulated by the so-called ‘special connection theory’ (as far as the aspects related to contract are concerned) or by the law applicable to tort or the law of the market affected (as far as the aspects outside of contract are concerned). Therefore, in order to accurately understand the legal relationship surrounding an international license agreement, it is necessary to determine the applicable law of each issue and to precisely define the scope of the matters regulated by such applicable law. This is the raison d’être of the private international law in its narrow sense. The precise delimitation of the boundaries between the areas of the contract law to be left to the parties and the areas where the Fair Trade Commission needs to intervene is a tough issue; this is more so in international license agreements involving multiple national laws.