지적재산권법의 손해배상제도에 관한 개선방안연구

전체 글

(1)지적재산권법의 손해배상제도에 관한 개선방안연구. 2002. 11. 연구자 : 현 대 호. 한국법제연구원.

(2) 목 차 제 1 장 서 설 ································································································ 9 제 1 절 연구의 목적 ··················································································· 9 제 2 절 연구의 범위 ················································································ 10. 제 2 장 기초적 분석 ··············································································· 15 제 1 절 재산권의 보호와 구제수단 ···················································· 15 Ⅰ. 재산권의 보호 ·················································································· 15 1. 변 천 ······························································································· 15 2. 각국의 입법 ··················································································· 16 Ⅱ. 재산권의 침해에 대한 구제수단 ·················································· 20 1. 금지청구 ························································································· 20 2. 손해배상청구 ················································································· 21 3. 부당이득반환청구 ········································································· 35. 제 2 절 지적재산권의 보호와 구제수단 ··········································· 37 Ⅰ. 지적재산의 보호 ·············································································· 37 Ⅱ. 지적재산권 침해에 대한 구제수단 ·············································· 38 1. 금지청구 ························································································· 38 2. 손해배상청구 ················································································· 38 Ⅲ. 지적재산권의 침해소송에 관련된 특수한 문제 ························ 45 1. 판결전의 이자 ··············································································· 46 2. 변호사비용 ····················································································· 47 3. 징벌적 손해배상 ··········································································· 48 4. 손해의 입증 ··················································································· 50. 제 3 장 특허, 실용신안, 의장의 보호와 일실이익의 손해배상 ·························································································· 53.

(3) 제 1 절 입법과 보호 ················································································ 53 Ⅰ. 각국의 입법 ······················································································ 53 1. 미 국 ······························································································· 53 2. 독 일 ······························································································· 59 3. 일 본 ······························································································· 60 Ⅱ. 특허, 실용신안, 의장의 보호범위와 침해행위 ························· 62 1. 특 허 ······························································································· 62 2. 실용신안 ························································································· 65 3. 의 장 ······························································································· 66. 제 2 절 특허권의 침해에 대한 일실이익의 손해배상 ················· 68 Ⅰ. 손해산정의 특성 ·············································································· 68 1. 일실손해의 유형 ··········································································· 68 2. 일실손해에 대한 산정의 특성 ··················································· 71 Ⅱ. 손해산정의 방법 ·············································································· 72 1. Panduit사건의 기준 ·································································· 72 2. 손해산정의 방법 ··········································································· 78 Ⅲ. 손해배상책임관련조항의 문제점과 개정방안 ···························· 90. 제 3 절 실용신안권의 침해에 대한 일실이익의 손해배상 ········ 91 제 4 절 의장권의 침해에 대한 일실이익의 손해배상 ················· 92 Ⅰ. 손해산정의 특성 ·············································································· 92 Ⅱ. 손해산정의 방법 ·············································································· 93 1. 순수한 일실이익액 ······································································· 93 2. 통상실시료 ····················································································· 93 3. 손해상당액 ····················································································· 94 4. 일실이익의 추정 ··········································································· 94 Ⅲ. 손해배상책임관련조항의 문제점과 개정방안 ···························· 94. 제 4 장 상표의 보호와 일실이익의 손해배상 ························ 97.

(4) 제 1 절 입법과 보호 ················································································ 97 Ⅰ. 각국의 입법 ······················································································ 97 1. 미 국 ······························································································· 97 2. 독 일 ······························································································· 99 3. 일 본 ····························································································· 100 Ⅱ. 보호범위와 침해행위 ··································································· 101 1. 보호범위 ······················································································· 101 2. 침해행위 ······················································································· 102. 제 2 절 상표의 침해와 일실이익의 손해배상 ······························ 102 Ⅰ. 손해산정의 특성 ··········································································· 102 Ⅱ. 손해산정의 방법 ··········································································· 104 1. 순수한 일실이익액 ····································································· 104 2. 통상실시료 ··················································································· 105 3. 손해상당액 ··················································································· 105 4. 일실이익의 추정 ········································································· 106 Ⅲ. 손해배상책임관련조항의 문제점과 개정방안 ························· 107. 제 5 장 저작물, 컴퓨터프로그램, 반도체집적회로 배치설계의 보호와 일실이익의 손해배상 ··········· 109 제 1 절 입법과 보호 ·············································································· 109 Ⅰ. 각국의 입법 ··················································································· 109 1. 미 국 ····························································································· 109 2. 독 일 ····························································································· 110 3. 일 본 ····························································································· 110 Ⅱ. 보호범위와 침해행위 ··································································· 112 1. 저작물 ··························································································· 112 2. 컴퓨터프로그램 ··········································································· 115 3. 반도체집적회로의 배치설계 ····················································· 116.

(5) 제 2 절 저작물의 침해에 대한 일실이익의 손해배상 ·············· 117 Ⅰ. 손해산정의 특성 ··········································································· 117 Ⅱ. 손해산정의 방법 ··········································································· 118 1. 순수한 일실이익액 ····································································· 119 2. 통상이용료 ··················································································· 119 3. 일실이익의 추정 ········································································· 121 Ⅲ. 손해배상책임관련조항의 문제점과 개정방안 ························· 122. 제 3 절 컴퓨터프로그램의 침해에 대한 일실이익의 손해배상 ····························································· 124 Ⅰ. 손해산정의 특성 ··········································································· 124 Ⅱ. 손해산정의 방법 ··········································································· 124 1. 순수한 일실이익액 ····································································· 124 2. 통상이용료 ··················································································· 124 3. 손해상당액 ··················································································· 125 4. 일실이익의 추정 ········································································· 126 Ⅲ. 손해배상책임관련조항의 문제점과 개정방안 ························· 126. 제 4 절 반도체집적회로 배치설계의 침해에 대한 일실이익의 손해배상 ···························································· 126 Ⅰ. 손해산정의 특성 ··········································································· 126 Ⅱ. 손해산정의 방법 ··········································································· 127 1. 순수한 일실이익액 ····································································· 127 2. 통상이용료 ··················································································· 127 3. 손해상당액 ··················································································· 128 4. 일실이익의 추정 ········································································· 128 Ⅲ. 손해배상책임관련조항의 문제점과 개정방안 ························· 128. 제 6 장 영업비밀, 데이터 베이스의 보호와 일실이익의 손해배상 ························································ 129 제 1 절 영업비밀 ···················································································· 129.

(6) Ⅰ. 입법과 보호 ··················································································· 129 1. 각국의 입법 ················································································· 129 2. 보호범위와 침해행위 ································································· 131 Ⅱ. 일실이익의 손해배상 ··································································· 134 1. 손해산정의 특성 ········································································· 134 2. 손해산정의 방법 ········································································· 135 Ⅲ. 손해배상책임관련조항의 문제점과 개정방안 ························· 137. 제 2 절 데이터 베이스 ········································································· 137 Ⅰ. 입법과 보호 ··················································································· 137 1. 각국의 입법 ················································································· 137 2. 보호범위와 침해행위 ································································· 141 Ⅱ. 일실이익의 손해배상 ··································································· 142 Ⅲ. 손해배상책임관련조항의 문제점과 개정방안 ························· 142. 제 7 장 결 론 ··························································································· 145 <참고문헌> ································································································· 153 ◎ 부 록 - 지적재산권법의 손해배상책임 관련조항에 대한 개정권고(안) ····· 159 1. 특허법 ···································································································· 161 2. 의장법 ···································································································· 163 3. 상표법 ···································································································· 165 4. 저작권법 ································································································ 167 5. 프로그램보호에관한법률 ···································································· 169 6. 반도체집적회로의배치설계에관한법률 ············································ 171 7. 부정경쟁방지및영업비밀보호에관한법률 ········································ 172 8. 온라인콘텐츠산업발전촉진법 ···························································· 176.

(7) 제 1 절 연구의 목적. 제1장 서 설 제 1 절 연구의 목적 오늘날 산업구조가 상품경제에서 정보경제로 옮겨감에 따라 사회도 산 업사회에서 정보사회로 이동하고 있고 그 부의 원천도 유형적인 재산에 서 무형적인 재산으로 넓혀지고 있다. 특히 지적재산권은 그 경제적 가 치가 상승함에 따라 침해도 급증하고 있음은 주지의 사실이다.1) 지적재 산권은 무형물이어서 유체물의 경우보다 침해가 매우 용이할 뿐만 아니 라 타인의 이용을 배제할 수도 없다. 또한 지적재산권이 침해되었다고 하여도 침해 여부를 판단하기 곤란하고 침해로 발생한 손해액의 증명은 더욱더 어렵다. 따라서 불법행위로 인한 손해배상책임을 규정한 민법 제 750조에만 맡겨두는 경우 피해에 대한 구제는 물론 침해에 대한 억제도 기대하기가 어렵다는 것을 경험하여 왔다. 따라서 지적재산권법에서는 지적재산권의 침해로 인한 재산적 손해(일실이익)의 배상제도를 개발하 여 왔다. 지적재산권은 재산권에 해당하므로 민법 제750조가 적용됨은 당연하고, 지적재산권법의 일실이익 배상제도 역시 민법 제750조의 손해 배상제도에 기초를 두고 있다. 따라서 민법 제750조의 손해배상책임에 대한 성립요건을 충족해야만 하는데, 지적재산의 무형적 특성으로 손해 배상책임의 성립요건(예컨대, 침해행위의 간주, 과실의 추정 등)과 손해 의 발생 및 손해의 산정에서 유체물의 경우보다 완화 내지는 보완하는 제도를 도입해 왔다. 특히 지적재산권의 경우 경제성의 원칙이 강조되어 유체재산권에서보다 효율적인 보호장치와 구제수단이 강조되고 왔다.. 1) 개인의 정신적 창조물에 대한 침해가 급증하고 있는데, 그 이유는 첫째 상품에 사용 되는 기술의 복잡성과 다양성, 둘째 침해자의 시장진입으로 상실하는 연구 및 개발에 대한 투자의 중요성, 셋째 침해자에 의하여 손상된 상표 등에 의하여 형성되는 신용 의 중요성, 넷째 침해자의 시장진입으로 예상되는 잠재적 이용의 상실, 다섯째 지적 재산권자에게 부여되는 엄청난 손해배상액 등이 그 주된 이유로 작용하고 있는 것으 로 판단된다(Robert L. Dunn, Recovery of Damages for Lost Profits, Lawpress Corporation, 5th edition, 2002. p.17).. 9.