Public
Official’s Conflict of Interest Prevention Act, and Members of the Legislation
and Judiciary Committee under the National Assembly
Myung Shin Kim, Adviser
The Korean Patent Attorneys Association
In 2020, following 2004 and 2008, the
Amendment bill to the Patent Attorney Act was referred to the Legislation and
Judiciary Committee(LJC) under the pretext of reviewing the legal system and
wordings, after passing by the Industry, Trade, Resources, Smal and Medium
Venture Business Committee under the National Assembly(NA).
The main gist is as follows; In case where
a lawyer was appointed as attorney for a patent infringement lawsuit, if the
parties to the case so desire, they may appoint patent attorney as attorney
additionally, but patent attorney must always appear in court together with lawyer
and receive training prescribed by the Supreme Court’s Rules. However, the LJC
discarded these bills due to the expiration of the session without reviewing
the legal system or wording as before. Until now, when the revised bills of the
Tax Agent Act, Customs Agent Act, Certified Labor Agent Act and Certified Real
Estate Agent Act passed the relevant Committee of the NA, if it was judged that
there was a possibility of disadvantages to the lawyer profession, they were
always referred to the second Sub-Committee of the LJC, which is the graveyard
of bills, and then the bills were scrapped by the expiration of the session
without even deliberation.
In advanced foreign countries, since the
Legislation Research Office within the NA reviews in advance whether there is
any problem with the legal system or wording during the legislative process,
the LJC does not re-deliberate bills that have passed the standing Committee as
in our country. The LJC in our NA, just like the Senate, has committed the
illegal act of scrapping bills by expiring the session without even
deliberation on the bills related to the lawyer profession under the pretext of
examining the legal system and wording. In order to correct such abuses of the
LJC, Art. 86, Para.5 of the National Assembly Act(NAA) revised in September 2021
introduced a mandatory provision stating that “ the LJC shall not review the
referred bills beyond the scope of the legal system and wording”.
Despite this, countless instances of abuse
of authority by the LJC members continue. Furthermore, the fact that none of
the disciplinary provisions stipulated in Article 155 of the NAA include
disciplinary provisions for cases of violations of Article 86, Para. 5 of the NAA
should be viewed as a simple legislative deficiency, and the Korean Patent
Attorneys Association may also submit a constitutional petition under Article
68 of the Constitutional Court Act, since the fundamental rights of the people
guaranteed by the Constitution have been disregarded due to the illegal acts of
the LJC members. Rep. Jin-Pyo Kim, who was the Speaker of the 21st
NA, proposed a revision bill to the NAA. The bill divided the Legislation and
Judiciary Committee into the Legislation and Judiciary Committee respectively.
The Legislation Committee was to review only the legal system and wording, but
in principle, the deliberation should be completed within 30 days (60 days in exceptional
cases) from the date the bill was referred to it, and the Judicial Committee should
perform the role of the previous duty. Unfortunately, this bill was scrapped
due to the expiration of the session.
Meanwhile, Article 2, Para. 4 of the
Public Official’s Conflict of Interest Prevention Act (POCIPA) defines that a
conflict of interest is a situation in which a public official’s private
interest is Involved when performing his or her duties, and the fair and honest
performance of duties is hindered or likely to be hindered. Article 4, Para. 3
of the POCIPA stipulates that a public official shall avoid performing his or her
duties and prevent conflicts of interest if he or she determines that the fair
and honest performance is difficult due to private interests.
Furthermore, Article 5, Para. Item 15 of
the POCIPA stipulates that when a member of the NA deliberates on a bill in
which he or she has a conflict of interest, he or she shall voluntarily request
to avoid the performance of his or her duties. When this provision is violated,
the Speaker of the NA may suspend or cancel the duties of the members of the
LJC pursuant to Article 21 of the NAA, and the Speaker of the NA may also
impose disciplinary measures on the members of the LJC pursuant to Article 26
of the NAA.
In addition, Article 32-4 of the NAA
stipulates that if a member of the NA has a conflict of interest in relation to
the review of a bill, he or she must report it to the Ethics Review Committee,
and Article 32-5, Para. 1 of the NAA contains a mandatory provision that a member
of the NA must avoid voting or speaking on a bill that may pose a conflict of interest.
Finally, according to Article 155, Para. 3 Sub-Para. 4 of the NAA, the Speaker
of the NA may discipline a member of the NA who violated this provision after a
review by the Ethics Special Committee.
In this situation, when the amendment bill
to the Patent Attorney Act regarding representation of patent infringement
lawsuit is referred to the LJC after passing by the relevant standing Committee,
if members of the LJC who are lawyers participate in the deliberation of the
bill again without requesting to recuse themselves in accordance with the POCIPA
and the NAA, the Korean Patent Attorneys Association should appeal against
those to the National Human Rights Commission for punishment, and request the
Speaker of the NA to discipline those in accordance with the NAA. Furthermore,
the Korean Patent Attorneys Association may consider a legal action because it may
constitute the abuse of power or dereliction of duty under the Criminal Act.
This is because the LJC members’ illegal acts, such as abuse of power or
dereliction of duty, can no longer be tolerated.
We must make a resolution at the Annual
General Assembly held in the upcoming February, so that if the illegal acts of
the LJC members are repeated again as before, the Korean Patent Attorneys Association
together with other interested qualified associations can take immediate
legal actions.
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