A provision requiring all patent attorneys to join the Korean Patent Attorneys Association violates the Constitution, South Korea’s Constitutional Court ruled Tuesday.
In a constitutional complaint challenging Article 11 of the Patent Attorney Act, the court issued a ruling of “constitutional nonconformity” by a vote of 4-3-2, with four justices supporting nonconformity, three finding the provision unconstitutional and two upholding it.
A ruling of constitutional nonconformity recognizes unconstitutionality but keeps the law temporarily in force to avoid disruption. The court ordered the provision to remain applicable until the National Assembly revises it, setting a deadline of Oct. 31, 2027.
Six patent attorneys, including a person identified as A, were disciplined with reprimands in November 2018 by the head of the Korean Intellectual Property Office, cited for not joining the association. They sued to overturn the discipline and sought a court referral for constitutional review of the part of Article 11 covering “patent attorneys registered under Article 5(1),” but the request was denied. They then filed the constitutional complaint in January 2020.
Article 5(1) requires a person qualified as a patent attorney to register with the head of the intellectual property office before starting practice. Article 11 requires those registered under Article 5(1) to join the association.
The association has argued that allowing lawyers to automatically obtain patent attorney qualifications undermines professionalism and has pushed legislation to abolish the system, but it has not succeeded due to opposition from the Korean Bar Association. Conflict between the professions has continued, including the creation of a separate Korean Patent Lawyers Association by lawyer-patent attorneys who did not want to join.
Justices Kim Sang-hwan, Kim Hyeong-du, Jeong Hyeong-sik and Oh Yeong-jun said the provision violates the principle against excessive restrictions and “infringes the freedom of association and occupational freedom of lawyer-patent attorneys.”
They said disputes between patent attorneys and lawyers have also produced internal conflict within the association between nonlawyer patent attorneys and lawyer-patent attorneys, with the association acting to represent the interests of nonlawyer patent attorneys. In that context, they said, forcing lawyer-patent attorneys to join “excessively restricts” their freedoms.
They added that striking the provision down immediately would remove the legal basis for mandatory membership and could make it difficult for the association to continue operating, explaining the decision to issue a nonconformity ruling.
Justices Kim Bok-hyeong, Cho Han-chang and Ma Eun-hyeok said the legislative purpose — strengthening public-interest work through a single association and promoting development of the industrial property rights system and related industries — is significant. But they said the private harm is greater because patent attorneys have no choice but to join one association.
Justices Jeong Jeong-mi and Jeong Gye-seon dissented, saying the disadvantages to patent attorneys are not greater than the public interest in improving patent attorneys’ competence and ethics and ultimately promoting development of the industrial property rights system and related industries.
* This article has been translated by AI.
Copyright ⓒ Aju Press All rights reserved.