기술신탁의 법경제적 분석에 관한 연구

Abstract

Trust is a system derived from Common law, but it is widely used in Civil law countries, and technology trust can be said to be of great significance as a system that can maximize the economic utility of the trust system. In this study, based on the legal structure of technology trust, an economic analysis of the internal relationship of technology trust and technology trust management institutions was attempted to discuss how technology trust achieves efficiency. The summary of the contents is as follows. First of all, it was discussed that technology trust imposes fiduciary duty on the trustee to solve the problem of agency and transaction costs. The fiduciary duty of the existing trust law is applied as it is to technology trust, and in addition, the fiduciary duty is incorporated into contracts to reduce transaction costs. It was explained that since the fiduciary duty is a standard, not a rule, and costs are incurred, judicial costs are being reduced through sub-standards that specify the contents of the fiduciary duty. Regarding the restrictions on the participation of commercial corporations by technology trust management institutions, it was explained that the participation of private corporations increases the economic utility of society as a whole. It was presented based on the fact that existing trust companies are unlikely to handle technology trust business, that the scope of business activities of technology trust management business has expanded, which has increased the incentives for for-profit corporations to participate in the market, and that participation of for-profit corporations can contribute to increasing social welfare from a legal and economic perspective. Lastly, in relation to the non-dispute obligation imposed by the contract between the technology trust management institution and the licensee, it was reviewed whether the person concerned in the request for invalidation trial of the prior licensee was reviewed. Since the technology trust management institution is the least cost avoider compared to the licensee, the licenseeʼs request for invalidation trial can be justified. A request for invalidation trial by a licensee is a case in which a legal act is invalidated by applying the inalienability rule, and it can be said that the license contract itself is highly likely to create an external effect to a third party. Even if there is a non-dispute agreement in terms of the welfare of society as a whole, if this cannot be justified in terms of external effects, the licensee can claim for invalidation despite the non-dispute agreement. The criterion for determining the legitimacy of a non-dispute agreement is the case where transaction costs are minimized, and it is judged that the transaction costs can be minimized by leaving it to the judgment of the court.