직무발명에 관한 섭외적 사안의 준거법 결정- 대법원 2015. 1. 15. 선고 2012다4763 판결을 대상으로 -

This article discusses how to decide on the applicable law of an employee’s invention, when it comes to its overseas patents rights in other countries. Based on this, the standard of judgment on the applicable law of the employer in the case of a employee’s invention filed in a foreign country shall be examined. We have examined the main judicial interpretation in relation to the object judgment. First, Contrary to the court decisions, Analysis has concluded that applicable law for the international legal relationship regarding Employee’s Invention is not ‘employment contract’ under article 28 of the Act On Private International Law but ‘Party’s Autonomy’ or ‘Objective Connection at Time of Decision of Applicable Law’under article 25 or 26 of the Act On Private International Law. Second, there has been opposite views for the employee’s invention that judged to be an employment relationship. From this point view, the analysis of the comparative method of Employee’s invention system was interpreted it as labor regulations and the analysis results have been supported the interpretation under article 28 of the Act On Private International Law. Third, Regarding a lawsuit filed by plaintiff, analysis deal with the issue of interruption of business that is prerequisite understanding the nonexclusive license right. Unlike a preceding articles, this article focuses on ‘Mandatory Application of Acts of Republic of Korea’under article 7 of the Act On Private International Law and reviews the law applicable to internaional legal relations about employee’s invention. In Republic of Korea, The typical employee’s invention law is Patent Act and Invention Promotion Act. Patent Act regulates the effect of the non-exclusive license right. In this case issue, the non-exclusive license right regarding mployee’s invention is dealed with Invention Promotion Act. Because, this article reviews Invention Promotion Act is considered for Mandatory Application of Acts of Republic of Korea’under article 7 of the Act On Private International Law. for this purpose we examined whether Invention Promotion Act corresponds to domestic laws in order to public order maintenance and public welfare. For mandatory rules interpretation about Invention Promotion Act, we examined Compensation for Employee’s Inventions(Article 15) and (Article 10) Employer’s non-exclusive license in the right to employee’s inventions and relations with the CONSTITUTION OF THE REPUBLIC OF KOREA Article 22. Also, There is no direct mandatory rules within Invention Promotion Act, considerable factors tha can infer mandatory rules. This study, which has conducted legal interpretations for international mandatory rules about Invention Promotion Act, is different from existing research. Furthermore, through examination and analysis of the intent and intent of the Invention Promotion Act, I am somewhat proud that Intectual Property Laws has elicited a discussion that can be interpreted as international mandatory rules. Domestically mandatory laws is considered to international mandatory rules a small number of cases. and this argument is also limited to interpretation. We look forward to increasing the precedent and discussion on international mandatory rules about Intectual Property Laws in the future and further study is necessary.