지식재산 침해 징벌적 손해배상 책임에 관한 법적 연구*- 특허법 제128조 제8항을 중심으로 -

This paper examines the punitive damages system for intellectual property infringement. First, we examine the significance of the punitive damages system and trends in case law. The first legislation introducing the punitive damages system in Korea was Article 35, Paragraph 2 of the Fair Subcontracting Transactions Act, amended by Act No. 10475 on March 29, 2011. This amendment allows for damages of up to three times the actual damages in certain cases against the perpetrator. Currently, a total of 23 laws have introduced punitive damages in six areas: fair trade, personal information, industrial safety, intellectual property rights, product liability, and anti-discrimination under labor law. These laws also cover approximately 36 violations subject to punitive damages. Case law has issues, including a lack of understanding of intent and gross negligence, unclear standards for damages, and an excessive expansion of the punitive damages system. In the intellectual property field, Article 128, Paragraph 8 of the Patent Act, which raised the maximum damages from three times to five times on August 21, 2024, stipulates only "intention" and excludes "gross negligence." However, current case law has numerous shortcomings. Therefore, case law should refer more closely to the interpretation of Section 284 of the US Patent Act to address the current issues. Excessive damages may achieve the goal of protecting patent holders in the short term, but they pose numerous long-term problems. Therefore, the legislature should consider reverting to the three-times damages system. This is because patent protection is fundamentally linked to the establishment of a fair and reasonable damages system.