소극적 권리범위확인심판에서 속함(침해) 또는 속하지 않음(비침해)의 증명책임의 소재

This paper discusses the distribution of burden of proof in a negative right scope declaration trial. According to the majority theory of the distribution of burden of proof in general civil litigation, the theory of classification of legal requirements, and the Supreme Court precedents, if the plaintiff (debtor) asserts the nonexistence of the relevant fact in a lawsuit for declaration of nonexistence of a right, a lawsuit for objection to a claim, or a lawsuit for objection to distribution, the defendant (creditor) must prove the existence of the relevant fact. If this principle of distribution of burden of proof is applied to a negative right scope declaration trial, it seems that if the claimant (the person concerned with infringement) asserts the fact of non-infringement, the defendant (patentee) will have to prove the fact of infringement. However, the Patent Court’s 2016Heo4818 and 2006Heo2295 decisions stated that the claimant in a negative right scope declaration trial must prove the fact of non-infringement. This paper aims to examine whether the two judgments are valid. In this regard, the legal theories of China, Austria, the United States, Germany, the United Kingdom, Japan, and Korea were comparatively analyzed, and the following conclusions were drawn through such analysis. First, in order for the final judgment in a negative right scope declaration trial to have real finality, it is reasonable for the right holder (the defendant) to prove that the specific subject matter of declaration falls within the scope of the right (infringement) in the negative right scope declaration trial. Second, in cases where the right holder fails to prove literal infringement and asserts equivalent infringement, it is reasonable for the right holder, who is the defendant in the negative right scope declaration trial, to bear the burden of proof for first three of the five elements corresponding to the positive requirements of the equivalent infringement judgment criteria, and for the claimant in the negative right scope declaration trial to bear the burden of proof for the equivalent fourth and fifth elements corresponding to the negative requirements.