知的財産權의 流動化에 관한 硏究 : 立法的改善方案을 중심으로 = (A) study on the securitization of intellectual property right : especially, a study on the legislative suggestion of related act for securitization in Korea|RISS 상세보기

다국어 초록 (Multilingual Abstract)

Asset Backed Securitization(ABS) can offer a variety of financing and economic opportunities to firms, university laboratory and individuals, etc. It converts subprime assets or cash flows into marketable securities and especially increases liquidity.
Since the law concerning the Asset-Backed Securitization(ABS Act) was enacted on September 16, 1998, for a period of over 4 years until year 2002, Asset-Backed Securities market grew explosively to the point where the aggregate amount of the issued asset-backed securities reached the surprising amount of 146.9 trillion won. Such growth made a great contribution to Korea overcoming of IMF financial crisis.
However, there are still inadequate factors in Korean legal system with respect to implementation of the asset backed securitization systems as it has been developed under Anglo-American jurisdiction. Therefore, domestic asset-backed securitization could have been enacted only by using the special benefit granted under the ABS Act. However, both the contents of the existing ABS Act and the attitude of the regulatory authorities, which are responsible for the application of ABS Act, places certain restrictions that prevents domestic financial industry from handling all of the various asset-backed securitization practices that are carried out in developed countries.
In a securitization transaction, a low quality firms is able to issue high quality securities because securitization serves as a bankruptcy remote vehicle. The transaction can make the overall cost of financing reduced. In addition, it is recorded as an off balance sheet transaction which is considered an important indirect benefits to originators.
The total known volume of intellectual property securitization in recent years has increased in U.S, Japan and other advanced nations. However, intellectual property securitization has not been used as a method of financing as yet in Korea. In Korea, intellectual property-backed securitization can present significant difficulties beyond securitization occurred in mortgage industry.
Securitization is the packaging of designated pools of receivables with an appropriate level of credit enhancement and the redistribution of these packages to investors. Investors buy the repackaged assets in the form of securities which are collateralized on the underlying pool and its associated income stream. Securitization thereby converts illiquid assets into liquid assets. In securitization, the corporation pools assets together for purchase by a bankruptcy-remote special purpose vehicle(SPV) or trust company; purchase is effected by issuing multiple tranches of securities based on the cash flow generating capacity of the asset pool.
As the importance of intellectual property right has been emphasized, it appeared as one of pending questions how to manage and utilize intellectual property right. This thesis overviews trust system and securitization of intellectual property right for its management and utilization.
In Japan, the Trust Business Act was established in 1922. The first revision of the Act was made in 82 years. In 2004, Japan made several fundamental changes to the Trust Business Act in an effort to respond to a changing business environment and thus the amendments to the Act give more flexibility to trusts businesses. The main features of the amendments are as follows: Firstly, the restrictive scope of entrustable assets is lifted, and any and all property rights are included as assets for entrustment to trustee. Secondly, types of trust business are diversified, trust licenses are granted to a broader range of entities, and minimum standards of capital and man power requirements are relaxed. Thirdly, detailed regulations and guidance with respect to the duties and liabilities of trustees are provided. Fourthly, the door to the business of selling beneficial interests of trusts is widely opened. Finally, foreign corporations can be engaged in trust business. The Japanese amendments draws admirable attention from Korean legal scholars in the following contexts. Under the Trust Business Act of Japan, as trusts become more flexible instrument to commodate a variety of purposes, they will be used with even greater frequency compared to other types of structured finance vehicle. The Act is survived in a very rapidly changing financial environment. The introduction of the business of selling beneficial interests of trusts into Japan will promote the liquidity of the beneficial interests and thus the interests will be a good object of investment.
In Korea, Trust Business Act revised in 2005 defines that intangible property right including intellectual property right can be deposited, laying the legal foundation of beneficiary certificate issuance while trusting knowledge-based property. Nevertheless, it needs further research as it has complicated legal structure for securitization as well as trust of intellectual property right due to its distinctive features.
Until the end of 2003, asset management activities in Korea in sectors such as stock brokerage, trust funds, and insurance were in general regulated through the internal rules set by the industrial associations of each of these sectors, thereby ruling out any possibility of government intervention.
It turned out, however, that this free market approach resulted in the issue of unfairness among different financial industries and also was cited as one of the major elements discouraging foreign investment in Korea financial industry. This was because the system was not able to embrace the new investment opportunities or sectors that were emerging with the development of Korea financial industry.
It was within this context that the Indirect Investment Asset Management Business Act was legislated and became effective as of January 2004. The intent of the law is to regulate the various business activities of different sectors of Korea financial industry in a more coordinated and equal way by placing numerous indirect investment firms under the single legal concept of an indirect investment organization. Also by integrating all related laws and rules into a single law so that those different sectors are all treated equally by the law it is hoped that confidence and trust will eventually be regained from foreign and domestic investors.
In this regard, the law reinforced a number of safety devices for investors and also improved greatly the issue of asset management regulation by widening the concept of asset management to include more investment asset items. It is hoped that the law will reinvigorate the entire asset management industry in Korea.
This thesis suggest the major points of the new law as a functional law that integrates all the previous related laws and examines a number of possible implementation and legal issues for the securitization of intellectual property right.
Intellectual property right requires professional and complex knowledge for valuation, it is more economical and efficient to depute to specialized trustee institutions. Therefore, each company including group-based or venture capital needs to manage their intellectual property right by trusting to specialized depository companies. While trusting intellectual property right, companies are able to securitize by issuing beneficiary certificate for funding purpose. As a funding unit is small sum, it can be privately equitized and protection measures for investors should be put in place. When knowledge-based property is securitized, substantial right should be given to trustee for management and operation of trusted property. Secondly, both impartiality and loyalty duty are required to avoid conflicts regarding profit between dual trusts. Thirdly, disclosure requirement should be imposed to intellectual property backed securities.
This dispelled disputes over whether a trust company can engage in self-dealing under the Trust Business Act, the commercial Act and the Civil Act, and makes it possible for an originator engaged in trust business to perform ABS in two ways: the trust company can entrust the securitization asset which it already possesses to its trust account or it can also purchase the securitization assets into its trust account with trust funds from investors. A trust is a relationship in which a person or the trustee holds legal title to the trust property or trust corpus, but is bound by a fiduciary duty to exercise that legal control for the benefit of one or more individuals or the beneficiary, who hold "beneficial" or "equitable" title. The trust is governed by the terms of the usually written trust agreement and local law. The entity(one or more individuals, a partnership, or a corporation) that creates the trust is called the settlor. However, the present trust act and trust business act are not sufficient to securitize trust property including the intellectual property right. Therefore, both acts require considerable revision and improvement.
This thesis is suggesting a way to improve both trust act and trust business act by presenting a system that will settle the trust act into the form of general law.
Lastly, This thesis especially is emphasized on the legislative suggestion of related Act for the purpose of securitization of intellectual property right in korea.

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목차 (Table of Contents)

제1장 서론 = 1
제1절 연구의 목적 = 1
제2절 연구의 범위 = 7
제3절 연구의 방법 = 10
제2장 지적재산권 유동화의 개념 및 특성 = 12

제1장 서론 = 1
제1절 연구의 목적 = 1
제2절 연구의 범위 = 7
제3절 연구의 방법 = 10
제2장 지적재산권 유동화의 개념 및 특성 = 12
제1절 지적재산권 유동화의 개념 = 12
1. 지적재산권 유동화의 의미 = 12
2. 지적재산권 유동화의 구조 = 15
(1) 유동화의 기본구조 = 15
(2) 유동화의 구성요소 = 16
3. 지적재산권 유동화의 대상자산 = 22
(1) 유동화와 지적재산권의 상관성 = 23
(2) 지적재산권 유동화를 위한 분류와 평가 = 24
(3) 구체적인 예 = 40
제2절 지적재산권 유동화의 효용과 필요성 = 44
1. 효용성 = 44
(1) 자산보유자 측면의 효용 = 44
(2) 투자자 측면의 효용 = 45
(3) 기타 유동화 참가자 측면의 효용 = 46
2. 필요성 = 47
(1) 자금조달 금융기법으로서의 활용가능성 = 47
(2) 자금조달의 다양화와 투자기회 제고 = 49
(3) 신상품개발의 경쟁력 확보 = 50
제3절 지적재산권 유동화의 특색 = 52
1. 개요 = 52
2. 일반적 특색 = 53
(1) 기업의 지배구조 측면에서의 특색 = 53
(2) 진정매매의 기초자산을 바탕으로 한 자금조달 = 53
(3) 지적재산권 유동화 비용측면의 특색 = 54
(4) 자금조달 측면의 비교 = 55
(1) 저작인격권의 존재 = 57
(2) 공유되고 있는 권리 = 58
(3) 권리의 일부양도 = 59
제3장 주요국에 있어서 지적재산권의 유동화 실태 = 61
제1절 미국의 지적재산권 유동화 현황 = 61
1. 유동화의 연혁 = 61
2. 지적재산권의 유동화 실태 = 63
제2절 일본의 지적재산권 유동화 현황 = 69
1. 유동화의 연혁 = 69
2. 지적재산권 유동화 현황 = 70
(2) 산업재산권 분야 = 72
3. 지적재산권 유동화 모델 = 75
(1) 북두 펀드-영웅 신화 사례 = 75
(2) 고쿠요주식회사 사례 = 76
제3절 우리나라의 지적재산권 유동화 현황 = 77
1. 지적재산권 유동화의 실태 = 77
2. 지적재산권 유동화의 도입가능형태 = 78
(1) 직접금융방식의 유동화 = 78
(2) 간접금융방식의 유동화 = 79
(1) 개설 = 80
제4절 전망 = 87
제4장 지적재산권 유동화의 활성화를 위한 해결과제 = 90
제1절 문제제기 = 90
제2절 성질상의 해결과제 = 92
1. 유동화대상으로서의 적합성 = 92
(1) 문제제기 = 92
(2) 지적재산과 지적재산권 = 92
(4) 재산으로서의 유한성과 단명성 = 96
(5) 해결과제 = 97
2. 지적재산권의 유동화와 진정매매성 = 102
(1) 문제제기 = 102
(2) 외국에서의 진정매매성에 대한 논의 = 105
(3) 우리나라 자산유동화법상의 진정한 매매의 요건 = = 112
(4) 해결과제 = 118
3. 유동화의 절차적 복잡성과 과중한 비용 = 123
4. 지적재산권의 현금흐름의 불안정성 = 125
제3절 법·제도상의 해결과제 = 127
1. 유동화방식의 선택문제 = 127
(1) 문제제기 = 127
(2) 미국의 유동화 방식 = 128
(3) 일본의 유동화 방식 = 132
(4) 우리나라의 유동화 방식 = 146
(5) 해결과제 = 159
2. 자산보유자의 자격제한 = 165
(1) 문제제기 = 165
(2) 해결과제 = 166
3. 유동화증권에 대한 공시규제와 투자자보호 = 167
(1) 문제제기 = 167
(2) 해결과제 = 170
4. 수동신탁의 문제 = 171
5. 수탁자의 이익상반에 관한 문제 = 172
(1) 문제제기 = 173
(2) 해결과제 = 174
제5장 지적재산권 유동화를 위한 입법적 제언 = 176
제1절 지적재산권의 수익증권화 = 176
1. 유동화의 대상으로서 재산권의 범위확장 = 176
2. 사업(영업)의 유동화 가능성 = 178
3. 수익권의 유가증권화 = 179
제2절 수탁자의 자기집행의무의 완화 = 180
1. 수탁사무의 복잡성과 전문성 = 180
2. 일본 신신탁법상 자기집행의무 = 182
제3절 신탁설정행위의 다양화 = 184
1. 자기계약금지의 완화 = 184
2. 신탁선언 = 185
제4절 수익자인 투자자의 보호 = 188
1. 수탁자의 금전에 대한 분별관리의무 = 188
(1) 문제제기 = 188
(2) 신탁법상 분별관리의 의미 = 189
(3) 신탁법 제30조 단서의 해석 = 190
2. 수탁자의 보상청구권의 배제 = 191
3. 수익권의 유통의 안정성 확보 = 192
제6장 결론 = 194
參考文獻 = 201
ABSTRACT = 218

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