Legislative Petition for the National Assembly Act

(Intellectual Property News published by the Korean Patent

Attorneys Association on December 5, 2023)

                                                                                    Myung-Shin Kim, Adviser

                                                                                    The Korean Patent Attorneys Association

Following 2006 and 2008, in May 2022, an amendment bill to the Patent Attorney Act has passed the Industry, Trade, Resources, Small and Medium Venture Business Committee of the National Assembly that in case a lawyer was appointed as an agent for a patent infringement lawsuit, if the party concerned wants, patent attorney can be appointed additionally as legal agent, provided that patent attorney must present to the court together with lawyer. However, the Legislative Judicial Committee has not even deliberated and as before, it has been referred to the second subcommittee called the Tomb of the Bill and is waiting for the order of abolition at the end of the session.

The Legislative Judicial Committee has so far abolished the bills at the end of the session without reviewing its feasibility if there is any possibility to cause a disadvantage to the business of the lawyer, even if amendments such as Tax Agent Act, Custom Agent Act, Labor Agent Act, Real Estate Agent Act and Patent Attorney Act passed the relevant standing Committees of the National Assembly.

The Legislative Judicial Committee has been in direct violation of the Conflict of Interest Prevention Act of Public Officials, Article 32-5 of the National Assembly Act (Avoidance of Legislative Deliberation by Conflict of Interest Members) and Article 86, Para.5 of the National Assembly Act (Review only on Legal System and wordings). Such illegal acts have been possible like the Senate because there was no disciplinary action under National Assembly Act even if the bills passed after a long review and deliberation by all the standing Committees of the National Assembly.

In this way, since the Legislative Judicial Committee has continued to engage in illegal activities that violate the Constitution, Article 86, Para.5 of the National Assembly Act was newly established on September 14, 2021, and a mandatory provision was introduced that “the Legislative Judicial Committee shall not examine the referred legislation beyond the scope of legal system and legal wordings”. However even if any member of the Legislative Judicial Committee violates, there are no disciplinary provisions anywhere in Article 155 of the National Assembly Act. So, it has come to be nothing more than a simple declaration.

On the other hand, according to the Conflict of Interest Prevention Act by Public Officials and Article 32, Para. 5 of the National Assembly Act, the members of the Legislative Judicial Committee who are qualified as lawyers did not apply for avoidance when deliberating on amendments such as the Patent Attorney Act, which naturally conflicts with the lawyers’ interests, and have never heard of lawmakers being disciplined for such conflicts of interest despite being subject to disciplinary action under the National Assembly Act.

In last March, I wrote my article in the Law Times “In the Era of the Advanced Technology, Cooperation between Lawyers and Patent Attorneys is desperately needed”, and in last June, accused the illegal activities of lawmakers having qualification of lawyer through my article in the Law Times “the Legislative Judicial Committee and the Conflict of Interest Prevention Act by Public Officials”.

In recent seminar held at the National Assembly, I suggested that the Korean Patent Attorneys Association, the Korean Customs Agents Association, the Korean Labor Agents Association, the Korean Real Estate Agents association, and the Korean Tax Agents Association could file a constitutional petition under Article 68 of the Constitutional Court Act because the basic rights of the people guaranteed under the Constitution have been violated by illegal acts of the lawmakers. The above five Associations temporarily suspended the request for a constitutional petition trial, but agreed to submit a petition to the National Assembly under Article 123 of the National Assembly Act in the name of joint names, and finally filed a national consent legislative petition.

With the National Assembly on November 29, 2023. The content of the legislative petition is to revise the National Assembly Act so that the examination right on the scope of legal system and Legal wordings by the Legislative Judicial Committee are carried out by other department within the National Assembly, such as in many developed countries. According to the National Assembly Petition Review Rules and the National Assembly Consent Petition Procedure, more than 50,000 people must be petitioned by December 29 to be recognized as a formal petition, and the Chairman of the National Assembly is required to refer the petition to the competent standing Committee.

Therefore, it is hoped that the National Assembly Act will be reasonably revised by actively cooperating with the members of the above five Associations and their families, as well as the employees of the members’ offices, to take advantage of this opportunity. It is also hoped that the amendment to the Patent Attorney Act, a long-cherished desire of science, technology, industry circles and the party concerned of patent infringement suits, will pass the National Assembly in accordance with the precedents of the United States, the United Kingdom, the European Union, Japan and China for national interest. Let’s actively participate in the petition movement!