知的財産權 侵害의 法的 救濟方案에 관한 考察

김경화 경희대학교 국제법무대학원 2009 국내석사

私立大學 特許權 活性化에 대한 硏究 : 大學敎授의 職務發明을 中心으로

이진석 경희대학교 국제법무대학원 2006 국내석사

징벌적 손해배상제도 수립에 관한 헌법적 관점에서의 고찰 : 비교법적 검토를 중심으로

차승보 경희대학교 국제법무대학원 2013 국내석사

Modern society is being complicated highly by rapid informatization, and the type of illegal act is being diversified day by day. These damages by illegal acts can relieve through the claim of the damage, but only compensation for damages, the case of not aiding victims can happen. Also, only being restitution, its abuses can happen as a serious case socially. For this reason, introduction of the punitive damages system for preventing reoccurrences of illegal act as well as the relief of the damage is discussed. The Punitive damages have been developed as a kind of remedies of damages due to torts in Anglo-American legal system. Punitive Damages compensation system is a special one that is originated from Britain and developed in America. In calculation of compensation of amount, they do not base on the actual damages of victims but as punishment for the malignancy of the size of assets and social status of convicts to punish the convicts and to guarantee the prevention of reoccurrence in the future and it is criminal system of compensation of damages. That is, Punitive Damages compensation system is a composite system of civil and criminal laws that are located in-between illegal action law and criminal laws. Punitive damages on an increased scale awarded to the victim over and about what will barely compensate him for his property loss. Punitive damages are assessed in addition to compensatory damages to punish the defendant for the commission of an aggravated or outrageous act of misconduct and to deter him and others from such conduct in future and they speak that punitive damages is the exception of compensation for damages. It will be useful to deter the wrongful act with maliciousness, recklessness or wantonness because of awarding Punitive damages in the civil forum have the function of saction the offender. So it is desirable to try to adopt the legal theory of punitive damages in Anglo-American law. But Some scholars and judges criticize punitive damages for some reason on other. In the first place, it is alleged that to subject the defendant both to criminal prosecution and to punishment in the form of civil punitive damages for the same act expose the defendant to "double jeopardy" in violation of the spirit of the constitutional prohibition against punishing a man twice for the same offense. For example, In 2007, the Supreme Court decided Philip Morris U.S.A. v. Mayola Williams(127 S.Ct 1057) and reduced the punitive damages award on the ground of the 14th amendment's procedural due process. In 2008, The U.S Supreme Court delivered Exxon Shipping Co. v. Grant Baker, which involves a challenge to the large punitive damages awarded in litigation over the Exxon Valdez oil spill. The U.S Supreme Court used the case to push for further limits on punitive damages, but the Court's decision is limited to the maritime context. The Court denied review on the due process issues relating to the excessive punitive damages. It is urged that, while fines in criminal cases are limited by statutes, punitive damages are limited only by the caprice of the judges and that this want of a guiding measure leads to excess and injustice. Anyhow, it will be useful to deter the wrongful act with maliciousness, recklessness or wantonness because of awarding punitive damages in the civil forum have the fuction of saction the offender. So it is desirable to try to adopt the legal theory of punitive damages in Angle-American law But the damages compensation system in our country has the purpose of compensating in monetary amount by the idea of fair sharing of the damages occurred to victims in reality. Therefore criticism on the malignance of illegal violator, punishment, or function of preventing reoccurrence with preventive control is almost not considered at all. And recently in Korea, the academic study of punitive damages compensation system is expanding and theories and opinions favoring of punitive damages compensation are becoming more prevalent. It is expected of new change and development of the damages compensation system in our legal system introduction of this system. The primary function of the torts law of Korea is aimed to compensate the actual damages inflicted on the plaintiff by the defendant's tortious conduct. In order to recover his or her damages, the plaintiff must prove that the damages was caused by the defendant's tortious conduct. Also the amount of actual damages must be proven in a specific amount by a showing of evidence. However, this is a tricky inquiry because, in some cases, the exact damages is hard to measure. To overcome the difficulty, statutory damages have been proposed as an alternative way by some critics because it may be imposed by the court without any proof of actual damages. However, under the Korean law, the plaintiff is only able to recover his or her actual damages. The imposition of damage awards to punish unlawful conduct and deter future infringements has never been allowed. Therefore, the introduction of statutory damages can basically cause some conflicts with the traditional remedy rule of Korea. In addition, the punitive portion of a statutory damage award can sometimes imposes an unconstitutional grossly excessive penalty. So I examine some fundamental issues in detail. In this study, after examining the limitations of the statutory limit on the precedents of the United States and the constitutional limits of punitive damages, the introduction of individual law punitive damages our country, ie, constitutional principles, and fines magazine principles of due process and double punishment prohibited in principle that there are no problems that limit was investigated. The purpose of this study was to investigate Constitutional limitations the introduction of the Punitive Damages.

生活廢棄物 再活用制度의 沿革的 考察

김시약 경희대학교 국제법무대학원 2012 국내석사

Abstract A chronological Study on the Recycling of Daily life Waste by Kim Si-Yark, Ph.D. There has been no expense on environment as on air and water in our daily life during last 200 to 300 years in the course of industrialization. But to impose expense on environment has become necessary because the use of fossil fuel and greenhouse effects increases. It results in the crisis of human civilization. In the industrialized society mass production, mass consumption, and mass waste have deteriorated natural environment and daily life. Additionally mass discharge of CO₂by the use of fossil fuel much influences the climate change. Also the management of waste has become a serious problem that needs an essential countermeasure. To resolve the global climate change the developed Annex 1 nations that agreed on the terms of the Kyoto Protocol should change energy source so that they might reduce the discharge of CO₂ to the level of 1990. The problems of the environment have now become global concern a well as a significant variable in the light of international competition. On the other hand most nations in the world try to expand the international trade by FTA. Europe has frigidly controled the environmental issues step by step. As the result of it the FTA between Korea and Europe overshadows. The USA, Japan and China make and enforce new laws and regulations. Under these circumstances the world should change the paradigm of growth to the mode of Low Carbon and Green Growth. But it is not easy affaire because it needs tremendous budget. Our country imports 98% of energy whose 98% is fossil fuel. "In the Liberation Day ceremony on the fifteenth of August 2009 President Lee, Myung-bak declared the policy of Low Carbon and Green Growth' as the future vision of sixty years onward"1) To stabilize the society of green growth, a comprehensive review on waste which night be a new energy source is necessary. Our country is oriented to Low Carbon, Green Growth and recycling society. In that sense we can obtain resource and energy by means of recycling mass waste. Along with the change of age the concept of waste that man discarded has become important resources of energy. The history and changing aspects of waste are in words worthy of the studies in terms of legal and social point of view. "Today daily life waste is called 'urban mine' that means by the utility of daily life waste is an uncountable wealth. At the same time the investigation upon laws and regulations pertaining to waste might influence upon other laws"2) And the range of investigation cover how separate and screen waste for effective recycling, and how to find out other effective method of reuse. The amendment of recycling promotion law of Ministry of Environment places emphasis on separation and screening of waste. The volume ranges 60-70% to plastic and wrapping material. The study aims to analyze and review the effective method of daily life waste, electronic devices and automobiles. The objective of the study is to investigate the history of waste and recycling policy. And the law of resources saving and recycling promotion is to revise the regulation of 10 year deposit to the mode that holds the producers responsible for the treatment of waste. The reuse of food rubbish is contained in the study, as a case study I introduce the management method of Nawwon City in Chollabukdo Province. Simultaneously the 'energizing of waste' those policy and contemporary situation are the target of the research. The study put the emphasis upon the definition and the classification of waste. The process of waste production and who can manage to waste effectively consist of the aspects of the study. I studied the laws pertaining to waste chronologically. To check the stages the industrialization of developed countries are major in the study. The system of holding responsible for producer of waste whose contents and utility are also the object of a comparative review. The direction of activation as one of the consequent items of the study. The legal system of waste 1960's to 1970's was focused on the law of garbage and night soil disposal. At the end of 1970's the law of environment conservation was made and enforced. From that time the concept of defence in environment changed to the concept of aggressive conservation. After that in 1986 definite system of waste was improved to make the integrated law of waste management. About this law detailed studies are necessary. And I make effort to analyze items and their result to make use of the holding responsible for producer system. On the basis of this study I figure out the method of activation of management of waste. The method of this study is deductive and comparative interpretation. The analysis of recycling and improved method adopted EPR system. At first the chronology of waste management laws and the concept of waste are classified totally to understand. The method of collecting data is to survey the consecutive accumulation of various data. Comparative study is based on the related system of laws which are adopted in Germany, USA, and Japan. Those developed countries hold much information and know-how. Also the writer critically compare law systems of foreign countries and our country. In this study the interpretation about domestic and foreign laws of waste is used. The recycling of daily life waste is very important. Government publications and reference books have been used for this study. Government reports and case study of Namhae Town were very helpful for this study. It is meaningful that I found better methods of improvement and directions of government policies.

퍼블리시티권의 양도성과 상속성에 대한 고찰

천주홍 경희대학교 국제법무대학원 2011 국내석사

The Right of Publicity for the Study of the Transferability and Descendibility Chon, Ju-Hong Department of intellectual Property Rights Law Graduate School of International Legal Affairs Kyung-Hee University This is a study about the right of publicity that is the right of an individual to protect his or her name, likeness, signature, photograph, voice and other distinctive characteristics from non-authorized commercial use by others. In United States, this right has been developed while distinguishing the concept of the right of property from that of privacy since early 1950s. The right of publicity is the right of an individual to control the commercial value of his identity such as name, likeness, voice. Historically, the right of publicity is the concept developed in the U.S.. The nature of the right of publicity is not the moral right, but the right of property, more precisely, the right of a kind of intellectual property. The right of publicity is similar to copyright in that both rights deal with object's originality. Recently in South Korea, by the reason of radical development of popular entertainment, professional sports and advertising industry, there are many cases that use of name or likeness of famous person for advertisement, began to discuss about this right with some quarrels that one is misappropriated one's value of property by others with no permission. Publicity rights that have economic values, are clearly differentiated from the portrait or privacy rights in terms of their strong contours in property rights, thereby, can be regarded as intellectual property rights that have the nature of property rights as well as the nature of personality rights. On the other hand, it's desirable that unlicited inheritance and legally secured inheriting protection periods of publicity rights be allowed. If not, the protections of inheriting parties and succeessors must not be warranted. Therefore this study is intended to research the protections of the right of publicity around the world and further to know the possibility of the introduction of them into Korean law.

징벌적 손해배상에 대한 연구

장윤선 경희대학교 국제법무대학원 2011 국내석사

현대사회는 과거와 달리 하나의 행위로 다수의 피해가 발생하고, 정보 및 산업의 급격한 발달로 인하여 새롭게 등장하는 불법행위의 유형들도 다양하다. 기업의 악의적이고 의도적인 불법행위로 인하여 다수의 피해자가 발생하고, 그 형태는 공권력의 남용에 의한 신체적 자유 또는 프라이버시의 침해와 같이 실제 손해의 배상만으로는 피해자의 구제가 충분하지 못한 경우와 같이 나타날 수 있다. 이러한 경우를 구제하고 불법행위의 재발을 막기 위해서 징벌적 손해배상제도의 도입이 논의되고 있다. 징벌적 손배배상제도는 손해액보다 더 큰 배상액, 즉 징벌적 배상을 하게 함으로써 가해자의 도덕적 해이를 방지하는 기능을 한다. 징벌적 손해를 청구하기 위해 가해행위의 고의성 혹은 악성을 입증된다면 영미법에서 인정하고 있는 명예훼손, 폭행, 불법감금 등의 불법행위는 신중한 배상액의 산정을 통해 징벌적 손해배상을 인정해야할 것이다. 본 논문은 징벌적 손해배상법리를 비교·검토하고 그 도입방안을 제시한다.

기업의 지식자산가치 증대를 위한 방법의 고찰

박경훈 경희대학교 국제법무대학원 2011 국내석사

The purpose of this study is to reveal the correlations between the sales of companies having many patents and their patent numbers applied in domestic and US markets by using regression analysis, and influences by their changing sales on the number of patent, ultimately drawing macro strategies of patent for domestic companies with lots of patents. And the number of department responsible for knowledge asset in domestic companies is compared to that of Europe. In a way to acquire valuable patents, measures such as job invention rewards and job invention evaluation in quality and quantity are also studied. In this study, strategies for patent of foreign companies are also researched along with precedent concerning patent litigation, showing that poor patent right could cause a risk of massive losses when failed in action with other companies or individuals. From the result of the regression analysis of the correlation between the sales of domestic companies with many patents and their number of applied patents, there are significant relations between the sales and their number of patent applied in foreign countries. That means they put more importance on foreign application rather than domestic one, and furthermore, changing in their strategies for patent application from quantitative improvement to qualitative one. In order to increase knowledge asset value, valuable invention accompanied by proper rewards is needed and a reasonable evaluation of job invention and its consequence strategies should secure a stable and strong patent right. In addition, it is also judged that strategies for R&D roadmap are required to secure a technology which has no a peculiar leader and acquire market share and increase value of companies.

서비스 무역에 관한 일반협정(GATS)상 전문직서비스의 국내규제 : 법무서비스를 중심으로

이영신 경희대학교 국제법무대학원 2005 국내석사

국내 의료기관의 중국 진출 관련 법제에 관한 고찰

윤준혁 경희대학교 국제법무대학원 2011 국내석사

우리나라 의료시장이 포화상태가 되면서 보다 많은 외국인 해외 환자를 유치하고 있다. 또한 뛰어난 의료기술에 바탕을 둔 선진 의료기관이 의료가 덜 발달된 거대한 중국 의료시장에 진출하고 있다. WTO 가입하면서 중국은 절반이 중국 의사임을 조건으로 공동투자에 한해 외국 의료기관에 양허를 하였고, 단기 외국인 면허를 인정해왔다. 유럽, 미국 등 무역 거대 파트너와 같이, GATS 제5조에 따라 우리나라는 중국과 FTA를 조만간 체결할 것이다. 중국․대만의 경제협력기본협정과 중국․홍콩 경제협력강화협정에 따라 중국 의료시장 개방은 더욱 가속화 하고 있다. 그러나 치솟는 민간병원 높은 진료비 문제로 국가는 GATS 제14조와 중국대외무역법에 근거하여 외자기업병원의 진입을 제한 할 가능성도 없지 않다. 만일 우리나라도 이와 같은 방식으로 일단 허용된 개방된 의료시장을 제한한다면 합리적 이유 없는 자의적인 차별이라고 주장하여 중국으로부터 WTO에 제소될 우려도 예상된다. 2007년 수정된 외상투자산업지도목록상에 의료분야는 합자․합작에 의해 설립하는 제한류에 속한다. ‘외자합자합작 의료기관 관리 잠행방법’은 외상투자기업법의 하위 법령으로 현행 외자 의료기관 설립의 기준이 된다. 최소등록자본이나 투자비율의 제한이 없는 ‘외자독자병원’이나 ‘합화기업병원’은 향후 이상적인 의료기관 설립 근거가 될 것이다. 홍콩․마카오 의료서비스 업자 독자병원 설립 잠행방법 시행에 따라, 우리나라 의료관련 지주회사와 법인이 우회적으로 진출을 시도하고 있다. 중국에서 병원들을 프렌차이즈화 한 경영지주회사 형식으로 의료 관련 ‘외국인 투자주식회사’를 설립하고 주식시장에 상장을 하여 의료자본 투자를 받아 운영할 수도 있을 것이다. 위생부의 ‘사회자본 의료기구 설립의 진일보 장려 및 인도에 관한 의견 통지’에 따라 합자합작에 의하지 않는 외국 독자병원 설립을 장려하고 있으므로 장차 중국 의료시장 진입에 준비를 위해 중국 의료기관 설립 근거가 되는 관련 법령을 파악해야 할 것이다. 더불어 중국 진출 의료기관에서 발생한 의료분쟁 및 의료소송 관련 중국의 손해배상 법체계와 중국 섭외민사적용법 등 준거법, 관할 문제와 관련하여 국제사법에 대한 검토 및 학습이 선결되어야 할 것이다. As South Korea's medical market is getting closer to saturation, it is no wonder to attract more and more foreign patients. Also it is quite natural for well-advanced hospitals to go abroad based on their medical skills, in particular, to the huge but underdeveloped Chinese medical market. In China, the health care services market has opened to foreign investors partially since China joined the WTO on condition that for more than half of Chinese doctors should be employed by medical institutions, joint ventures with Chinese partners are required, and the short-term medical license should be granted to foreign doctors. As is the case with such other big trading partners as European Union and the United States, Korea-China Free Trade Agreement might be concluded in the near future in accordance with GATS Article 5. In view of the exceptional provisions of the Economic Cooperation Framework Agreement(ECFA) between China and Taiwan, or the Comprehensive Economic Partnership Agreement(CEPA) between Hong Kong and China, gradual opening of medical market in China is now accelerated. However, owing to the sky-rocketing medical cost charged by provate-run hospitals, and government's efforts to curb medical expenses and to secure public health, there are assumption that China will be inclined to raise the entry barrier to the medical health market against overseas medical service providers pursuant to Article 14 of the General Agreement on Trade in Services(GATS) and China's Foreign Trade Law provisions. If South Korea protects its own medical market in the same manner, China will take Korea to the WTO dispute mechanisms for the reason of arbitrary or unjustifiable discrimination, and disguised restriction. Therefore, it is not advisable to open Korea's medical market to China in the forthcoming FTA negotiations. According to the Guidance List of Foreign Investment Industries (as amended in 2007), foreign investment in the healthcare establishments is confined to equity joint ventures or contractual joint ventures. The Interim Measures for Administration of Chinese-Foreign Joint Venture and Cooperative Medical Institutions, which is low ranking administrative law under the Chinese legal regime, provide for foreign equity-contratual joint ventures. The hospitals with no ratio of foreign investment nor minimum registered capital required, which may be established pursuant to the Wholly Foreign-owned Enterprise Law and the Partnership Law, must be ideal for the future while medical establishments belong to the Restricted Foreign Investment Industries. AS Enforcement Interim Measures for establishments of Hong-kong and Macau hospital which is exclusively with their own investment, Korea medical related corporation or company attempt to set up hospital of their own capital indiretly through Hong-Kong and Macau. The opinion of Ministry of Public Health about encouragement foreign wholly capital medical institute entry will speed up to make Korea medical company establish hospital in China without joint venture. China encourages foreign investment in hospitals In conclusion, it is imperative to learn about Chinese legal regimes regarding medical institutions and the judiciary system with respect to jurisdiction on a possible medical incidents. In this connection, the revision of the current relevant Medical Act is necessary for Korea's hospitals to go abroad. KEY WORD: General Agreement on Trade in Services(GATS), open door to medical services, Chinese medical institutions, foreign-invested enterprise, Guidance List for Foreign-invested Companies, Calculation of Personal Damages in China, Medical Accident Treatment Regulation

중국의 국유토지사용제도에 대한 고찰 : 건설용지사용권을 중심으로

이정렬 경희대학교 국제법무대학원 2011 국내석사

People's Republic of China adopts the public ownership of land as the foundation of the state. China makes the land belong to state and the community entirely forbidding the private ownership and private transaction of land. It is impossible that People's Republic of China abandons the public ownership of land unless People's Republic of China modifies the system of state. Land is the most important element of production. China is now implementing the socialist market economy with its current public ownership of land in space. The market economy is inevitably requires the private ownership and transaction of land. Against this back drop, China is responding to the market demand, by granting the right of land use to those who need land. Thus, the land use system of China plays a significant rule under the socialist market economy in China. However, the system of decree regarding the land use system in China is so complicated that it is difficult to identify currently implemented decree and figure out the up and down relationship between decrees as well as the old and new law. Therefore, those who are accustomed to the ordinary concept of the source of law and the system of organized decree find it difficult to access to the land use system of People's Republic of China. Therefore, this paper aims at studying the land use system of China as a whole and thoroughly analyzing the currently implemented decree used on the legal system regarding the land use.