지식재산권 침해의 비범죄화에 관한 소고

Unlike the right to life or general property rights, intellectual property rights, such as patents, are not inherently recognized rights. Rather, they are the matter of legislative policy, protecting intellectual property rights for industrial and cultural development. Whether these intellectual property rights infringements are subject to criminal punishment is fundamentally a matter within each country's legislative framework. Unlike the Anglo-American legal system, Korea, like Germany and Japan, criminalizes these rights. The current legal system has played a positive role in its own way, based on the importance of intellectual property rights, the values ​​and social consensus on criminal punishment, and the deterrent effect of criminal punishment. However, given the trend toward modernizing criminal justice, which places decriminalization as one of its key elements, and the fact that intellectual property rights are not subject to punishment in Anglo-American law, which particularly emphasizes the importance of intellectual property rights, a fundamental review of the decriminalization of intellectual property rights infringement is necessary. In particular, considering that intellectual creations are fundamentally a public domain, the harmful effects of monopoly of intellectual property rights, and the spread of shared values of intellectual property rights such as the copyleft movement, intellectual property rights are suitable for decriminalization. Furthermore, due to the nature of intellectual property rights protecting intangible intellectual creations, the scope of protection and the determination of infringement are ambiguous. Consequently, even experts have difficulty determining whether there has been an infringement until the court's final decision is made. In such a situation, it is questionable whether it can be said that there was intent, or that there was knowledge of the infringement, even if the infringement by a third party is acknowledged. If a court determines infringement, it presumes intent and imposes criminal punishment. This is an unfair approach that fails to consider the specific nature of intellectual property rights. If it is difficult to expect a change in this approach, it would ultimately be desirable to exclude them from criminal punishment. One could argue that there is a problem with the regulation of intentional infringers, but intentional infringements can be sufficiently addressed through the punitive damages. Although the abolition of criminal punishment provisions may limit the ability to impose criminal penalties on malicious infringers, when it comes to the negative substantive truth principle of criminal law, it is more important to fundamentally eliminate the problem of criminal punishment for the innocent. Now, our society also needs to foster a mature legal consciousness that resolves disputes from a civil perspective rather than through criminal punishment, and the intellectual property rights infringement is a suitable example of this.