국제기술이전계약 체결시 실무상 유의점에 관한 연구 - 물품과 비교하여 기술이 가지는 성격을 중심으로 -

A Study on Practical Implications in the Contract for International Transfer of Technology -Focused on Character of the Technology compared with Goods-

기술무역은 기술지식 및 기술서비스와 직접적으로 연관된 국제적·상업적 거래로 정의된다. 기술무역은 물품과 다르게 기술만이 가지는 무형성, 이질성, 가치의 누적성, 권리의 소멸성과 같은 고유한 특징으로 일반적인 매매 이외에도 라이선싱, 제휴 및 협력, 합작투자 등 상업적 목적에 따라 다양한 방식으로 거래될 수 있다. 이러한 다양한 형태를 포함하는 의미로 실무에서는 기술이전(Technology Transfer)이라는 용어가 일반적으로 사용된다. 본고에서는 기술이전이 이처럼 다양한 형태로 이루어질 수 있는 배경을 기술이 가진 성격으로 이해하고자 하며 특별히 전통적인 무역의 대상인 물품과의 비교를 통해 명확히 하고자 한다.

A new phenomenon in recent trade is the rising interest in the trade of product production and manufacturing methods themselves, unlike in the past, when the interest was focused on the trade of tangible goods. That is, technology is considered as the object of trade instead of a simple element of production as "technology itself is commercialized". The broad meaning of technology encompasses all the property of knowledge with economic value. Its narrow meaning refers to technology used to produce and manufacture goods. Technologies have features such as no forms, heterogeneity, accumulation of value and extinction of right. The trade of technology commands different styles and content from that of tangible goods due to their unique characteristics; and accordingly, has various risk factors. In other words, technology can be traded in various ways according to commercial objectives including licensing, technical partnership, and joint investment in addition to general trading. The specific forms of technology transfer strategies depend on the purposes and situations between corporations. In case of technical trade with any form, the parties should be cautious about the following practical aspects: First, the contract should clearly define the scope and transfer method of technology. It is a very important matter how the provider of technology will provide the user of technology with abstract technology with no substantiality. Second, a monopoly on technology recognized as intellectual property rights is granted to their inventors for some periods of time, but anyone can have access to that technology after the term of existence. Thus, it is important to check the terms of existence of a patent as well as the terms of contract. Third, the user of technology should fulfill his confidentiality obligation to prevent the technology of the provider from being leaked to a third party unjustly. Fourth, the provider of technology should make a contribution to the successful implementation of the technology by the user as well as provide the licensed technology. Finally, a model contract is recommended to minimizing the legal hiatus of complex technology transfer trade when concluding a contract.