국제 거래를 위한 공공계약과 지식재산권에 관한 기초 이론

This paper critically examines the intricate relationship between intellectual property (IP) rights and public contract law in the context of the artificial intelligence era, specifically within the framework of national R&D initiatives. The author meticulously distinguishes between policy considerations and the precise interpretation of legal norms, emphasizing the latter's crucial role in ensuring the lawful enforcement of IP regulations within public procurement. The author systematically categorizes intellectual property into creative rights (e.g., patents, copyrights), business identifier rights (e.g., trademarks), trade secret protection, and unfair competition law. A key distinction is drawn between the “registration principle” governing industrial property rights and the “creation principle” applicable to copyrights. The growing global emphasis on enhanced protection for trade secrets is highlighted, alongside the expanding scope of IP to encompass emerging domains like traditional knowledge and artificial intelligence, given the intangible nature of these assets. The paper elucidates the distinctive characteristics of public contracts, contrasting them with private civil agreements. Public contracts are presented as fundamentally process- and regulation-driven, prioritizing equal opportunity and fostering cooperative relationships for the achievement of public interests. Given their reliance on public funds, these contracts are underscored by a strong emphasis on legality and public benefit. Building upon these foundational principles, the author argues that technology transfer agreements within public contracts necessitate a thorough understanding of both IP legal principles and the various modalities of technology transfer. A clear differentiation between technology assignment and technology licensing is deemed essential, along with the imperative of imposing confidentiality obligations for trade secrets. A significant portion of the paper is dedicated to a critique of existing IP-related clauses within current public contract legal frameworks. The author identifies critical shortcomings, including a lack of systematic coherence, inappropriate placement of clauses, and the use of imprecise terminology. For instance, the phrase “use of patent rights, etc.” is argued to be imprecise and should be revised to “implementation of patented inventions.” Similarly, the application of copyright-specific terms like “reproduction, distribution, adaptation, and transmission” to patented inventions is deemed erroneous. Furthermore, the paper raises concerns that clauses demanding excessive disclosure of trade secrets may infringe upon contractors' constitutional property rights. In conclusion, the author underscores the paramount importance of ensuring that public contract law exhibits normative consistency with IP law to facilitate the proper utilization of intellectual property as a vital national asset. The use of ambiguous or inaccurate terminology in contracts is identified as a potential source of legal disputes, and a fundamental understanding of IP principles among public contract officials is strongly advocated.