영국 지적재산권법의 사상과 철학의 형성 = The Formation of the Ideas and Philosophy of British Intellectual Property Law

다국어 초록 (Multilingual Abstract)

This study examines the property laws of William Blackstone, praised as a great common law jurist of 18th-century Britain, and his scholarly influence on the establishment of intangible property rights. William Blackstone, following the lineage of John Locke, embraced the concepts of natural property rights and social contract theory, aiming to harmonize property rights under natural law with those under positive law. His concept of property rights is based on absolute dominion in accordance with the traditional principle of first appropriation. Therefore, his property rights imply control over a physical existence, making it impossible to recognize property rights over intangibles that lack physical substance.
Meanwhile, he regarded that, according to the social contract theory, legal coercion is possible in civil society, and accordingly, patent rights or copyrights recognized under positive law are rights subject to legal coercion. This is also consistent with the patent-copyright provisions in the constitution and Article 22, Paragraph 2 of our Constitution. According to Blackstone’s property law doctrine, goodwill cannot be recognized as property because it lacks a physical substance. However, in the 19th century, when the concept of intellectual property rights began to be established, goodwill was also recognized as an object of property rights. Blackstone conceptualized the notion of common law deductively, so he can be regarded as an early English legal formalist, and his achievements greatly influenced the establishment of the modern concept of intellectual property rights.