지적재산권분쟁의 중재적격에 관한 연구 -한국과 중국을 중심으로

• 영문명: A Study on Arbitration Qualification of Intellectual Property Right Dispute - Focus on Korea and China
• 발행기관: 한국중재학회
• 저자명: 최송자
• 간행물 정보: 『중재연구』 제21권 제2호, 27~46쪽, 전체 20쪽
• 주제분류: 사회과학 > 무역학
• 파일형태: PDF
• 발행일자: 2011.06.30

영문 초록

In the intellectual based society of the 21th century, intellectual property of nation and enterprise management has been the key element of nation’s competitiveness and development. Therefore in countries like Korea, China, and many other countries, intellectual property of advancement strategy are being constructed and intellectual properties are protected at national level. Top priority task of protecting the intellectual property is to efficiently resolute intellectual property right disputes. Considering the nature of intellectual property right and arbitrage system, arbitration to solve intellectual property disputes is realistically the best method. However, not all cases of them are qualified. In order to relieve the intellectual property disputes through arbitration, qualification must be obtained. During the process, generally and globally, intellectual property right dispute is evaluated by three parts, intellectual property right contract dispute, intellectual property right violation dispute, and intellectual property right validity dispute. Based on UN’s “ Convention on the Recognition and Enforcement of Foreign Arbitral Awards Agreement” in 1958, June 10th, in New York, both arbitrage organization and judgment can be approved in both Korea and China countries. However, as of today, there is a big gap of arbitration qualification between two countries, which can be troublesome if intellectual property right disputes arise. For instance, in Korea, intellectual property right contract disputes and intellectual property right violation disputes are both generally accepted as arbitration qualification. However for intellectual property right validity dispute, arbitration qualification is only accepted for non-registered intellectual property as in copyright entity. It does not apply to other registered intellectual property right as in patents. In China, arbitration qualification is accepted for intellectual property right contract dispute, and also accepted for intellectual property right violation dispute to copyrights but restricted to others. As for intellectual property right validity dispute, arbitration qualification is completely denied. Therefore, when there is an intellectual property right dispute between Korea and China, the biggest problem is whether China will accept arbitrage judgments made in Korea. Theoretically, arbitrage judgement made in Korea should be also accepted in China’s court. However, considering the criticism of China’s passive nature of arbitration qualification for its own local intellectual property right disputes, it’s very unlikely they’ll actively accept arbitrary judgment made in foreign countries. Korea and China must have a more open minded approach for intellectual property disputes and arbitration qualification. Base on WTO’s Intellectual Property Right Agreement, it’s being defined as private right. Therefore, sovereign principle should be the basic principle of solving intellectual property right disputes. Currently, arbitration qualification is expanding internationally. So both Korea and China must also follow the trend expand the arbitration qualification with a more open minded and forward looking approach, for the good of intellectual property disputes.

목차

Ⅰ. 서론

Ⅱ. 지적재산권분쟁의 중재적격

Ⅲ. 한국과 중국의 지적재산권분쟁의 중재적격

Ⅳ. 문제점 및 해결책

Ⅴ. 결론

참고문헌

ABSTRACT

키워드

중재적격 지적재산권분쟁 중재 중국중재법 한국중재법 중국지적재산권법 Arbitration Qualification Intellectual Property Right Dispute Arbitration China’s Arbitration Law Korea’s Arbitration Law China’s Intellectual Property Right Law