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특허 침해에 대한 형사적 구제의 필요성
Necessity of criminal remedies against patent infringement
Republic of Korea has both criminal penalty and punitive damages as a remedy for willful infringement of patent rights after the revision of the Patent Act in 2018. The statutory sentence for willful patent infringement, especially imprisonment, has been enacted since 1961, and the sentence has increased, but statistics over the past 13 years show that the application from the prosecution stage to the judgment is extremely insignificant. Even in the one case in which the prison sentence was ordered, it was necessary to apply doctrine of equivalent, and it is difficult to show the clarity required by the principle of legality, which shows circumstantial evidence that raises doubts about the necessity and justification of the imprisonment against willful patent infringement. Punitive damages is a system that has a punitive function and a deterrent and preventive function of the infringer’s actions, and can perform the same function as the imprisonment against infringement. The United States, Taiwan, China, Canada, Australia and the Philippines, which have punitive damages, do not have criminal penalties for willful infringement. Republic of Korea is the only country that has both criminal penalties and punitive damages for willful patent infringement. For the development of science and technology and economic development, published patents must be used in various ways throughout society. Due to its nature, it is desirable for the regulation and coordination of the country in the field of science and technology to intervene only to the extent of supplementing it while respecting individual autonomy and creativity as much as possible. The purpose of the Patent Act lies in technological innovation and industrial development, and although it is a willful infringement, punishing patent infringers as imprisonment or threatening them can be an act of cutting off the buds of technological innovation in advance. It would be desirable to perform remedies for patent infringement as compensatory damages, and punishment and prevention for willful infringement through punitive damages.
I. 서론
II. 특허침해죄의 연혁
1. 특허침해죄의 도입
2. 특허침해죄 관련 조항의 변화
III. 특허침해죄의 성격과 적용 현황
1. 특허침해죄의 본질
2. 특허침해죄의 적용 요건
3. 특허침해죄의 집행 현황
IV. 징벌적 손해배상의 도입
1. 특허 침해에 대한 민사적 구제
2. 징벌적 손해배상
3. 징벌적 손해배상 일반 및 기능
V. 국제적 현황
1. Trips 협정
2. 미국 및 영국
3. 독일
4. 일본
5. 대만
6. 중국
7. 국가별 정리
VI. 기술혁신과 형사처벌
VII. 결론
ABSTRACT
