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. | 