미얀마 지적재산권법 위반에 대한 규제 개선 방안 > 연구자료 (행자부 정책연구관리시스템 미러링)

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제1장 연구의 목적과 방법 ···························································································· 43
제1절 연구의 목적 ········································································································· 43
제2절 연구의 방법과 범위 ···························································································· 44
제3절 기대효과 ·············································································································· 45
제2장 지적재산권 보호의 국제기준과 내국법 ····························································· 47
제1절 개요 ····················································································································· 47
제2절 TRIPs 협정의 특징과 일반원칙 ········································································· 48
1. 특징 ···························································································································· 48
가. 산업재산권 및 저작권의 이분법의 탈피 ······························································· 48
나. 집행(enforce)규정의 명시 ························································································· 48
다. 무역 및 가트(GATT)성 논쟁 ·················································································· 49
라. 재판절차의 최소기준도입 ······················································································· 50
마. TRIPs 협정의 적용에 대한 개별회원국에 대한 유예기간 ···································· 50
바. 국제협정 플러스 방식 ····························································································· 51
2. 내국민대우원칙과 최혜국대우원칙 ·········································································· 51
가. 내국민대우원칙 ········································································································ 51
나. 최혜국대우원칙 ········································································································ 52
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제3절 미얀마법 개요 ····································································································· 56
1. 개요 ························································································································ 56
2. 미얀마의 법체계 ········································································································ 56
3. 미얀마의 지적재산법 체계와 국제협정 ··································································· 57
4. 최근의 미얀마 지적재산권법체계의 확립동향 ························································ 58
5. 미얀마의 지적재산권법 ··························································································· 59
가. 상표법 ······················································································································ 59
(1) 2019년 이전 상표법 및 상표실무 ··········································································· 59
(2) 2019년 이후: 2019상표법의 제정의 효과 ······························································· 66
(가) 1908년 등록법(the Registration Act 1908)과의 관계 ············································· 66
(나) 2018년 증서등록법(the Deed Registration Law)의 제정 ······································ 66
(다) 다른 법의 적용 ······································································································ 66
(다) 1860년 형법(the Penal Code 1860)과의 관계 ························································ 67
나. 특허와 디자인 ········································································································· 68
다. 저작권법 ··················································································································· 69
라. 텔레비전 및 비디오 법 (Television and Video Law, 1996) ··································· 70
마. 컴퓨터과학발전법 (Computer Science Development Law, 1996) ···························· 70
제4절 대한민국의 지적재산권법 체계 ·········································································· 70
1. 지적재산관련법 ········································································································· 70
2. 지적재산권의 구조 ···································································································· 71
가. 물품과 상품의 발전에 기여(산업재산권법):특허청 ··············································· 71
나. 문화에 기여(저작권법): 문화관광부 ······································································· 71
제3장 TRIPs 협정과 국내 지적재산권법의 TRIPs 협정 준수 ··································· 73
제1절 서 론 ···················································································································· 73
제2절 저작권제도 ·········································································································· 73
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1. 서론 ···························································································································· 73
2. 저작권의 대상 ··········································································································· 74
3. 저작인접권 ················································································································· 75
제3절 상표권 제도 ········································································································· 75
1. 상표의 개념 ············································································································· 75
2. 표장적격성 ················································································································· 76
가. 표장이 될 수 있는 것과 시각적 인식가능성 ························································ 76
나. 파리협약과 상표 부등록사유 ·················································································· 77
3. 사용주의 ···················································································································· 78
4. 상품 또는 서비스 ······································································································ 79
5. 상표등록에 있어서 절차의 보장 ·············································································· 80
6. 상표권 (제16조) ········································································································· 81
가. 금지청구권(소극적 권리) ························································································ 81
나. 저명한 상표의 보호 ································································································ 82
(1) 서비스표에 대한 확장 ····························································································· 82
(2) 저명성의 판단기준 ··································································································· 82
(3) 비유사 상품과 비유사 서비스에 대한 적용 ·························································· 83
(4) 상표의 보호기간 ······································································································ 84
7. 상표권의 제한(공정사용) ·························································································· 85
8. 등록상표의 불사용으로 인한 취소 ·········································································· 87
9. 상표사용의 제한금지 ································································································ 88
10. 상표권의 양도와 사용허락 ····················································································· 90
제4절 지리적 표시 제도 ······························································································· 92
1. 지리적 표시의 의의 ·································································································· 92
2. 지리적 표시의 보호 ·································································································· 93
3. 포도주와 증류주의 추가적 보호 ············································································ 95
4. 지리적표시 보호에 대한 제한 ·················································································· 97
가. 기존의 지리적표시의 보호 ····················································································· 98
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나. 선의의 지리적표시 사용자 보호 ············································································ 98
다. 선의의 상표사용자 보호 ······················································································· 98
라. 일반명칭화된 지리적 표시 ····················································································· 99
마. 원산지국가에서의 보호중단 ·················································································· 100
바. 무효쟁송의 제척기간 ····························································································· 100
사. 성명 ························································································································ 101
제5절 산업디자인(industrial design) 보호제도 ····························································· 101
1. 산업디자인(의장)의 의의 ························································································ 101
2. 디자인의 보호 ·········································································································· 103
제6절 특허 ···················································································································· 104
1. 특허성 ······················································································································ 104
가. 특허요건 ················································································································· 104
나. 특허를 받을 수 없는 발명 ···················································································· 107
(1) 공서양속에 반하는 발명 ························································································ 107
(2) 치료방법 등 ············································································································ 107
(3) 수입 및 국내생산여부에 의한 차별금지 ······························································ 108
2. 특허권 ······················································································································ 108
가. 특허대상이 물건인 경우 ······················································································· 108
나. 특허대상이 방법인 경우 ······················································································· 109
다. 특허권의 양도나 상속 또는 실시허락할 권리가 있다. ······································· 109
3. 특허출원요건 ··········································································································· 109
4. 특허권에 대한 제한 ································································································ 110
가. 특허권 효력과 제한 ······························································································· 110
나. 강제실시권 등 ········································································································ 111
5. 특허의 취소 몰수(제32조) ······················································································· 112
6. 보호기간(제33조) ····································································································· 113
7. 방법특허 침해에 대한 입증책임의 전환에 관한 특별규정(제34조) ····················· 113
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제7절 지적재산권의 집행 ···························································································· 115
1. 서론 ·························································································································· 115
2. 일반적 의무 ············································································································· 115
3. TRIPs 협정상 지식재산권 집행절차의 구조 개관 ················································· 117
가. 일반적 의무(제41조) ···························································································· 117
나. 민사 및 행정절차와 구제(제42조-제49조) ···························································· 117
다. 잠정조치(provisional measures)(제50조) ································································ 117
라. 국경조치(border measures)에 관한 특별 요건(제51조-제60조) ··························· 118
마. 형사절차(제61조) ··································································································· 118
4. 민사 및 행정절차 상세 ························································································· 118
가. 일반원칙 ················································································································· 118
나. 증거제출 및 절차 ·································································································· 118
다. 금지명령 ················································································································· 120
라. 손해배상 ················································································································· 121
마. 기타 구제조치 ········································································································ 122
바. 정보청구권 ············································································································· 123
사. 피고 구제 ··············································································································· 123
아. 행정절차(제50조) ··································································································· 124
제8절 잠정조치 ············································································································ 124
1. 서론 ·························································································································· 124
2. 내용 ·························································································································· 125
제9절 국경조치 ············································································································ 127
1. 서론 ·························································································································· 127
2. 세관당국에 의한 통관정지의 범위 ········································································· 127
3. 담보의 제공 ············································································································· 128
4. 통관정지기간 ··········································································································· 128
5. 수입자 및 상품소유자에 대한 배상 ······································································· 128
6. 직권조치 ··················································································································· 129
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7. 지식재산권 취득, 유지 및 관련 당사자간 절차 ···················································· 129
제10절 미얀마의 해사 세관법 ····················································································· 130
제11절 지적재산권 분쟁의 예방?해결 및 처벌 ······················································· 135
1. 투명성 원칙 ············································································································· 135
2. 분쟁해결절차 ··········································································································· 136
가. 분쟁해결에 관한 준거규정 ···················································································· 136
나. TRIPs 협정상 분쟁해결에 관한 규정 ··································································· 136
다. GATT상 분쟁해결절차 ·························································································· 137
제12절 형사처벌 ·········································································································· 138
1. 서론 ·························································································································· 138
2. 고의적이고 상업적 규모의 상표 및 저작권 침해 ················································· 139
가. 조문 ························································································································ 139
나. 형사처벌 대상 ········································································································ 140
다. 형사처벌의 주관적 및 객관적 요건 ··································································· 140
라. 형사처벌 수준과 내용 ························································································· 140
마. 위조상표와 저작권해적행위 이외의 침해행위- 임의적 규정 ····························· 140
3. 미얀마에서 형사처벌 ······························································································· 141
가. 특허법 ···················································································································· 141
나. 상표법 ···················································································································· 143
다. 디자인 보호법 ········································································································ 146
제4장 지적재산권의 형사집행과 제언 ········································································ 148
제1절 서론 ···················································································································· 148
제2절 대한민국에서의 지적재산권의 성공적 집행 ···················································· 149
1. 범정부적 지식재산권 보호 노력과 지적재산권 보호를 위한 인프라(infra)의 구축 ·········
149
가. 지적재산권 보호집행을 위한 정부의 인프라 ······················································ 149
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나. 지적재산권 보호를 위한 공공기관의 설립운영을 통한 인프라의 구축 ············ 152
다. 민관의 협동을 위한 인프라 구축 ········································································· 157
2. 지적재산권법리 및 교육의 체계화를 위한 인프라 구축 ······································ 158
가. 특허법원의 설립 ···································································································· 159
나. 로스쿨의 도입 ········································································································ 159
3. 손쉽고 신속한 분쟁해결을 위한 대체적 분쟁해결기관의 운영을 위한 인프라 구
축 ·································································································································· 159
가. 산업재산권분쟁조정위원회 ···················································································· 159
나. 저작권분쟁의 조정 및 알선 ·················································································· 160
4. 국제교류와 협력 ······································································································ 161
가. 해외산업재산센터(IP-DESK) 운영 ········································································· 162
나. 해외 지재권 분쟁 초동대응 지원 ········································································· 162
다. 저작권의 국제협력 ································································································ 163
라. 기타 및 민간활동 ·································································································· 165
제3절 지적재산권 범죄관련 분석 ··············································································· 165
1. 범죄데이터 및 전체적 추세분석 ············································································ 165
2. 개별적 분석 ············································································································· 168
가. 상표법 위반 ··········································································································· 168
나. 특허법 위반 ··········································································································· 169
다. 실용신안 ················································································································· 170
라. 디자인 ···················································································································· 170
제4절 지적재산권의 형사침해법리와 미얀마의 형사침해법리 해석 제안 ··············· 170
1. 개요 ·························································································································· 170
가. 국제 연혁 ············································································································· 170
나. 지적재산권침해죄의 특성 ····················································································· 171
(1) 실체법적 특성 ········································································································ 171
(가) 형사적 특성 ·········································································································· 171
(나) 구성요건에 관한 인식의 범위와 사실의 착오 ··················································· 172
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(1) 고의 ························································································································ 172
(2) 사실의 착오 ············································································································ 174
(다) 법률전문가의 법률의견서 ···················································································· 174
(라) 친고죄 및 비친고죄 ····························································································· 176
(마) 죄수(罪數) ············································································································· 176
(바) 간접침해에 대한 형사처벌 ·················································································· 177
(사) 권리간의 충돌 ······································································································ 179
(아) 행정청의 선행처분과 공정력 ·············································································· 179
(2) 절차적 특성 ············································································································ 179
2. 특허권 침해죄 ·········································································································· 180
3. 상표권 침해죄 ·········································································································· 180
4. 디자인권 침해죄 ······································································································ 180
5. 저작권 침해죄 ·········································································································· 181
6. 무역거래와 지적재산권의 보호 ·············································································· 181
제5절 지적재산권의 침해행위에 대한 수사와 미얀마의 수사 제안 ························ 182
1. 형사수사기관 개요 ·································································································· 182
2. 검찰 ·························································································································· 182
3. 지식재산권보호를 위한 사법경찰관리 ··································································· 185
4. 관세청 ······················································································································ 189
5. 저작권 ······················································································································ 190
6. 특허청 산업재산특별사법경찰 ················································································ 191
제6절 지적재산권 침해범죄에 대한 공소절차 및 미얀마의 형사공소절차제안 ······ 194
1. 개요 ·························································································································· 194
2. 지적재산권 침해 범죄에 대한 형사소추의 전문화 ··············································· 195
가. 특허수사자문관제도 ······························································································· 195
나. 특허범죄중점검찰청 ······························································································· 195
3. 공소제기와 형사절차 ······························································································· 196
가. 공소제기전 절차 ···································································································· 196
(1) 구속여부결정과 구속영장의 청구 ········································································· 196
(2) 구속영장 실질심사 ······························································································· 197
(3) 구속적부심사청구 ································································································· 197
나. 공소제기후 절차 ···································································································· 197
(1) 검사의 공소제기와 공소장부본송달 ····································································· 197
(2) 피고인의 의견서 제출 ··························································································· 197
(3) 공판준비전 절차 ···································································································· 198
(4) 공판기일의 지정 및 소환 ···················································································· 198
(5) 공판절차 및 판결선고 ··························································································· 199
제5장 결 론 ·········································································