소프트웨어 거래에서의 법률문제(EU, 독일에서의 논의와 비교적 관점)

The existing judicial system, especially the civil law system, is divided into two parts: the real right law governing the rights relations of goods and the obligation law system targeting some of the capabilities of people. However, the intellectual property system was introduced by granting rights to human intellectual creations that did not fall into this category. In particular, software, which is a digitalized intellectual creation, occupies a legal and social position as an important commodity comparable to existing real rights and rights of obligation. Since these digital goods are not physical, it is difficult to apply the real right law system, which is for physical objects. In addition, there is a counterparty to exercise the right, and it is impossible to apply it to the obligation law system that targets the counterparty's partial capabilities. This software cannot be incorporated directly into the existing civil law system as a third-party right that is neither a real right nor a right of obligation under our civil law. For this reason, an integrated judicial alternative that can clearly regulate the legal nature of software has become an indispensable problem. Moreover, through the current judicial system, the legal issue in software transactions has been raised as a fairly complex issue, and the need to regulate it in a legal system has emerged. In particular, when software is embodied in the carrier, the existing real right laws, sales contracts, and consumer protection laws corresponding thereto can be applied. However, there is no difference in the characteristics of the software as a product even if it is not specified in the carrier and is traded by direct transmission. As with intellectual property, it is urgent to establish a clear regulation on the handling of the legal nature of software, especially the legal nature of software, and the establishment of a transaction law independent of the existing real right law and obligation law. In order to secure the systemicity of our judicial system, the unspecified absolute right should be defined parallel to the real right laws and claim laws. Establishing the civil law system based on such unspecified absolute rights would be the systematic and rational way for our civil law system.