Legistlation
& Judiciary Committee and Prevention Law of Conflict of Interests
(Lawtimes
on June 19, 2023)
Myung Shin Kim
The Korean Patent Attorneys Association
In
May 2022, the Industry, Trade and Resources Committee (ITRC) of the National
Assembly (N.A.) passed through the revision bill for Patent Attorney Law that
in case an attorney at law is appointed as an agent for a patent infringement
suit (PIS), if the party concerned wants, the party may appoint a patent
attorney additionally as an agent, and it is now pending at the Legistlation
and Judicial Committee (LJC). However, this bill has a condition that when a
patent attorney presents before the court, the patent attorney must present always
together with an attorney at law.
The
similar bills with this bill were already passed through the ITRC and pended at
the LJC. However, the LJC had not discussed these bill at all and intentionally
abandoned them due to the expiration of the session. In case of the revision
bill for Tax Agent Law , Custom Agent Law, Licensed Labour Agent Law and
Licensed Real Estate Agent Law passed by the Committee concerned of the N.A.,
the LJC has abandoned them by the expiration of the session without discussion
on these bills, because the LJC judged that these bills may have the
possibility to cause any disadvantage to the business of attorney at law.
In
Korea, all kinds of bills passed by the Committee concerned of the N.A., have
been sent to the LJC to examine whether there is any problem in the legal
system or legal wordings in the bills. Taking this opportunity, the LJC like
the Senate in a country having the Senate system has committed an arrogation
continuously.
We
know the fact that in almost countries, this kind of service were proceeded by
a Legistration Investigation Department within their N.A. Thus, if any bill was
passed by the Committee concerned, then the bill has been submitted to the main
conference of the N.A. for discussion. To rectify this arrogation of the LJC in
September 2021, new Article 86,Para.,5 was stipulated. It reads that the LJC must
not examine beyond the legal system and wordings in the bill.
On
the other hand, since 1997, the Civil Procedure Code became a subject to Patent
Attorney Examination. Since 1996, all patent attorneys have trained in civil
procedure practice once a year, and since 1998, patent attorneys have
represented clients in patent cancellation suits against the decision of the
I.P. Trial and Appeal Board before the I.P. High Court. As such, patent
attorneys are ready to represent any PIS.
Further,
the industrial circle being the party concerned of PIS and the
science/technology associations have supported patent attorneys acting as an
agent of PIS for a long time. Twenty-seven countries in Europe, as well as the U.K.,
Japan, and China have already allowed patent attorney as the agents in PIS for
many years.
The
reality in Korea is that the big law firms, having attorneys at law and patent
attorneys have handled almost PIS. Thus, the legal costs were prohibitive, and
many small and medium companies involved with PIS have abandoned their suits
because of too expensive legal fees.
However,
if patent attorneys would be allowed as an additional agents for PIS, then
small law firm may have a chance to represent the suit together with patent
attorneys and the legal costs will be cheaper.
Even
in Japan, which has an identical Civil Procedure Code with Korea, patent
attorneys as an exception of representation by Attorneys at law have
represented a client in a PIS before a court for the past 20 years.
Nevertheless,
in February 2023, the LJC decided to submit the bill to the 2nd Small Committee under the LJC, because the parliamentary members having the
qualification of attorney at law opposed discussing the bill.
However,
there is no provision to punish this act in the Article 155 of the N.A.Law, in
case of violation of the Article
86, Para. 5 of the N.A.Law.
I
think that this is a lack of legislation obviously and the Korean Patent
Attorneys Association may demand a trial for constitutional appeal, according
to the Article 68 of the Constitutional Court Law, because the parliamentary
members infringed the fundamental right of people due to the arrogation and
abuse of their rights. Further, according to Article 32-4, 32-5 and 32-6 of the
N.A.Law , and the Prevention Law of Conflict of Interests, the parliamentary
members having the qualification of attorney at law should have avoided discussing
or voting when examining the revised bill for Patent Attorney Law whether
patent attorney will have a capacity of agent for PIS.
If
any parliamentary member violates these Articles of the N.A.Law, they will be
subject to punishment through an examination of the Special Ethics Committee of
the N.A.
The
decision of the LJC in February 2023 that the revised bill for Patent Attorney
Law was submitted to the 2nd Small Committee under the LJC, was
proceeded illegally without the evading procedure of the parliamentary members. Therefore,
the parliamentary members having the qualification of attorney at law must be disciplined.
If they are not disciolined legally, then it will be subject to a trial for
constitutional appeal.
Even
if a bill was passed by the Committee concerned of the N.A., all bills must be
examined by the LJC once again. But the LJC has abandoned many bills without any
reasonable reason by the session’s expiration.
To
prevent these unfair and unreasonable precedents by the LJC, here I propose
that this re-examination for a bill by the LJC must be examined by the
Legislation and Investigation Office within the N.A., or the number of
parliamentary members having qualification of attorney at law shall not exceed
one-half of the LJC if re-examination for a bill by the LJC is inevitable.
In
conclusion, the LJC should not consider only the business of attorneys at law,
but evaluate the national competitiveness in the PIS on the advanced technology
occurring in Korea. The LJC must follow the N.A.Law and the Prevention Law of
Conflict of Interests.
Finally,
I hope that the N.A. will pass the revised bill for Patent Attorney Law
reasonably soon.
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