2022년 개정 국제사법상 지식재산권 관련 소의 국제재판관할 문제: 총칙과 각칙의 검토

The 2022 Korean Act on Private International Law (hereinafter “the Act”), which was amended in January 2022 and shall come into force in July 2022, contains several new provisions on the jurisdiction matters in international litigation over intellectual property rights. This is a significant development in that it makes it possible to predict jurisdictional issues for the parties in a legal dispute to be brought to Korean court, those who enter into a contract related to intellectual property rights, and intellectual property right holders and infringers who might become parties to a legal dispute. In international litigations over intellectual property rights, the following provisions may be relevant: general jurisdiction as the country of the defendant’s habitual residence (Art. 3), specific jurisdiction as the country of the principal place of business, the place of doing business, and the location of property (Arts. 4 and 5). By simply defining the requirements of objective joinder of claims (Art. 6(1)), jurisdiction in counteraction (Art. 7), and subjective joinder of claims (Art. 6(2)), the 2022 Korean Act on Private International Law opens the way to resolve multiple claims or disputes between multiple parties at once. Jurisdiction by Agreement (Art. 8) and Jurisdiction by Pleading (Art. 9) are not applicable to the matters under exclusive jurisdiction of a foreign court. Whether a matter is under exclusive jurisdiction of a foreign court can also be determined by the Act. Among international litigations over intellectual property rights, the Act stipulates litigations over entries in registers of intellectual property rights (Art. 10(1)(i)) and litigations over establishment, validity, or extinguishment of registered intellectual property rights (Art. 10 (1)(iv)) as matters under exclusive jurisdiction. The Special Part of the Act stipulates specific jurisdiction in litigations over contracts related to intellectual property rights (Art. 38) and specific jurisdiction in litigations over infringement of intellectual property rights (Art. 39). This is the result of distinguishing—based on the principle of territoriality—specific jurisdiction in litigations over contracts related to intellectual property rights and infringement of intellectual property rights from specific jurisdiction in litigations over general contracts and torts. There remains a question on whether to apply the provisions on intellectual property rights in the Special Part to trade secrets and portraits of celebrities subject to the rights of publicity. Even for matters related to intellectual property rights, if it falls under consumer contracts or employment contracts, the provision on jurisdiction over consumer contracts or employment contracts must be applied. Finally, it needs to be remembered that the Act does not prescribe all the matters related to international litigation over intellectual property rights. If no provision on specific jurisdiction applies to a case, the general principles in Article 2 will determine whether Korean court has jurisdiction over the case by deciding whether a party or a case in dispute is substantively related to Korea.