"Judiciary Committee of National Assembly Runs Solely for Lawyers" Faces Operational Disruptions... Korea Patent Attorneys Association to "Take Strong Measures"

(Sang- Don Ju, Reporter of IP Daily on March 1, 2025)

In 2023, the National Assembly's Legislation and Judiciary Committee (Judiciary Committee) decided to refer the "Amendment Bill to Patent Attorney Act," which aims to introduce joint representation by patent attorneys and lawyers in the patent infringement lawsuits, to the Judiciary Committee's Second Subcommittee. This decision was made to review its systematic consistency with the Civil Procedure Act and to confirm the positions of the Court Administration Office and the Ministry of Justice.

However, the Second Subcommittee of the Judiciary Committee, often referred to as the "graveyard of bills," continued to delay its review, leading to the bill's dismissal upon the expiration of the legislative term. As a result, despite passing the National Assembly's Standing Committee in 2004, 2008, and 2020, the "Amendment Bills to Patent Attorney Act" have been blocked three times by the Judiciary Committee, which is predominantly composed of lawmakers with legal backgrounds.

"Legal Response to Judiciary Committee’s Activities Favoring Lawyers"... Korea Patent Attorneys Association Resolution

If the Judiciary Committee continues its dysfunctional operations by opposing and rejecting bills that negatively impact the legal profession, even when they have passed the relevant Standing Committees, attention will be focused on how the KPAA will respond.

Given that amendments to the Patent Attorney Act regarding ‘patent attorney’s representation in patent infringement lawsuits’ have failed to pass the National Assembly three times in the past 20 years, the Amendment Bill to Patent Attorney Act’ proposed by Assemblyman Kim Jung-ho in August 2024, currently pending in the National Assembly, is also highly likely to be blocked again if, as before, the Judiciary Committee members with legal qualifications participate in the systematic review or voting process even after it passes the relevant Standing Committee.

Joint Representation in Patent Infringement Lawsuits: This system allows patent attorneys to jointly represent clients with lawyers in civil litigation, including patent infringement lawsuits. Currently, patent attorneys are authorized to represent clients in patent trials and patent invalidation lawsuits, but they are not permitted to represent clients in patent infringement lawsuits. Article 8 of the current Patent Attorney Act states that "a patent attorney may act as a litigation representative in matters concerning patents, utility models, designs, or trademarks." However, both the Supreme Court (Supreme Court Ruling 2010Da108104, issued on October 25, 2012) and the Constitutional Court (Constitutional Court Decision 2010Hun-Ma740, issued on August 23, 2012) have interpreted Article 8 restrictively, ruling that patent attorneys' litigation authority is limited to cancellation lawsuits of trial decisions and does not extend to civil patent infringement lawsuits seeking damages.

In response, the Korea Patent Attorneys Association (KPAA), led by President Doo-kyu Kim, passed a resolution at its "64th Annual General Meeting" last month to take legal action against the Judiciary Committee members with legal qualifications if they abuse their legislative review authority to unjustly obstruct the fair deliberation of bills related to patent attorneys. The resolution, titled "Resolution on Legal Actions Against National Assembly Members with Legal Qualifications," includes various measures for addressing potential future violations.

If the Judiciary Committee members commit similar violations of law through abuse of authority or dereliction of duty, the KPAA plans to take the following legal actions:

• Filing a constitutional complaint

• Reporting the concerned Judiciary Committee members to the Anti-Corruption and Civil Rights Commission under the "Act on Prevention of Conflicts of Interest of Public Officials" (Article 5(1)(15), Article 21, Article 26)

• Requesting the Speaker of the National Assembly to discipline the Judiciary Committee members in question under the "National Assembly Act" (Articles 32-4, 32-5(1), 155(3)(4))

• Reviewing potential violations of the Criminal Act, such as abuse of authority or dereliction of duty

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Myung-Shin Kim, a former president of the KPAA who proposed the resolution, stated, "The Judiciary Committee has been acting like a de facto upper house, repeatedly blocking bills related to the legal profession under the pretense of reviewing legal structure and terminology, only to let them expire at the end of each legislative session. We must take strong legal measures based on the revised National Assembly Act and the Public Officials' Conflict of Interest Prevention Act to address such dysfunctional operations."

Is an Official Legal Action by the Korea Patent Attorneys Association Feasible?

Over the past two decades, the Judiciary Committee has consistently blocked amendments to not only the Patent Attorney Act but also the Certified Tax Accountant Act, the Customs Agents Act, the Certified Labor Agent Act, and the Licensed Real Estate Agent Act. Whenever amendments were expected to have a negative impact on the legal profession, the Judiciary Committee opposed them outright, allowing them to expire without deliberation.

Myung-Shin Kim, former KPAA president, explained, "In foreign countries, institutions such as the National Assembly Research Service preemptively review the systematic consistency and wording of bills during the legislative process. Therefore, once a bill passes a Standing Committee, it is immediately referred to the plenary session without additional review by the Judiciary Committee."

To rectify the dysfunctional operations of the Judiciary Committee, the National Assembly revised the National Assembly Act in September 2021. Article 86(5) was amended to include a mandatory provision stating, "The Judiciary Committee shall not conduct reviews beyond the scope of systematic consistency and wording of bills." Additionally, Article 32-5 was introduced, stipulating that "Lawmakers with conflicts of interest must request recusal from voting or speaking on related bills."

If the Judiciary Committee members with legal qualifications fail to voluntarily recuse themselves and continue to participate in deliberations and votes on the Amendment Bill to Patent Attorney Act, the KPAA plans to report them to the Anti-Corruption and Civil Rights Commission for violations of the Public Officials' Conflict of Interest Prevention Act. Furthermore, the KPAA intends to request disciplinary action against them by the Speaker of the National Assembly in accordance with the National Assembly Act.

However, most experts believe that the passage of the resolution at this year's KPAA General Meeting was primarily intended to unify the opinions of patent attorneys and strengthen the leadership of the KPAA's executive board, rather than to launch an official legal response. Given the practical challenges, an official legal action by the KPAA appears unlikely.

Instead, the KPAA is expected to continue demanding reforms to the Judiciary Committee in collaboration with the related Certified Associations. Proposal for indirect measures include:

• Establishing an independent body dedicated to systematic consistency and wording reviews of bills within the National Assembly

• Limiting the proportion of the Judiciary Committee members with legal backgrounds

• Implementing a recusal system for lawmakers with potential conflicts of interest

• Setting up an external advisory committee to review legislative proposals

These measures aim to address the structural issues within the Judiciary Committee and promote fairer legislative processes.