지식재산의 준거법에 관한 입법 방안

The transformation of the social environment triggered by the information revolution and the subsequent Fourth Industrial Revolution are forcing drastic changes in all legal norms in our society, including private international law and intellectual property law. Due to these changes in the environment, ADR is preferred over litigation in dispute resolution, and the major issues in private international law such as international jurisdiction and recognition & enforcement of foreign judgments are gradually decreasing day due to reduction of court cases. Also it became difficult to determine the governing law of a legal issue due to lack of or, at least, unclarity of the connecting factors(Anknuefungspunkt) thereto. Furthermore, as the need of interference of public law such as competition law has increased, rooms for the conflict of laws rule for application of private law tends to become diminishing. We are entering into an age that the fate of private international law is in crisis. In the field of intellectual property law, the focus has shifted from patents to copyrights for a long time, and now the focus is shifting from protection of intellectual property rights to protection from tortious acts such as trade secrets infringement and unfair competition. Furthermore, even in the subject of protection, the focus is shifting to protecting data and other intangible property itself, rather than creative works and achievements. In this paper, we look at these changes in the social environment from the point of view of intellectual property and try to find new standards for determining the law applicable thereto. In order to establish a new standard for determining the governing law of intellectual property issues, it is necessary to pay attention to the following points: (1) changes in the intellectual property environment; (2) global changes in the legal system of intellectual property; (3) compatibility with the international legal system of jurisdiction regarding intellectual property; (4) compatibility with international norms on the governing law of intellectual property; (5) carving general principles applicable to the governing law for various situations of intellectual property; (6) reflecting the upgraded status of Korea at the international intellectual property community; and (7) proposing of a model legislation for the days to come in the globalized world. From this point of view, the author advocated the principle of party autonomy and the principle of the most closely connected country as the principles for determining the law governing intellectual property instead of the traditional principles of lex protectionis or law of the origin. However, since allowance of the full party autonomy may results in unfairness, the setting of appropriate limits to the freedom of choice of law must be secured, and concrete and specific standards for determining the most closely connected country should be presented to enhance fairness and predictability of the governing law to be applied. Although it may be possible to improve the predictability of the governing law by adopting the above mentioned standards, realization of the fairness after application of such determined governing law would be a conundrum that can be hardly solved by the private international law alone.