See Attached List of Plaintiffs (Law Firm Jeong-il, Attorney Seo-Gyeong, Counsel for the plaintiff-appellant)

Republic of Korea (Law Firm Epex, Attorneys Kang Don-type, Counsel for defendant-appellant)

April 30, 2010

1. The defendant shall pay to the plaintiffs 3 million won with 5% interest per annum from July 25, 2002 to May 28, 2010, and 20% interest per annum from the next day to the day of complete payment.

2. Each of the plaintiffs' remaining claims is dismissed.

3. Of the costs of lawsuit, 2/3 shall be borne by the Plaintiffs, and the remainder by the Defendant.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiffs 10 million won with 5% interest per annum from July 25, 2002 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

1. Basic facts

A. According to the amendment of the Enforcement Decree of the Patent Attorney Act by Presidential Decree No. 16867, Jun. 27, 2000, the first and second tests conducted by the Defendant were converted into a "large-Scale Evaluation System" where a successful applicant has been determined within the scope of the number of persons to be selected and where all applicants have passed a certain score (40 points for each subject and an average of 60 points for all subjects). This was based on a resolution of the Regulatory Reform Committee to convert into a qualification evaluation system where all applicants have passed a certain score to increase the number of persons to be selected as technical professionals, including patent attorneys on July 16, 1999. However, the above absolute Evaluation System was implemented from January 1, 2002 with a preparatory period set.

B. Accordingly, on January 10, 2002, the Defendant announced the instant test schedule to implement the first test on March 31 of the same year, which is the first test to be implemented as an absolute assessment system in accordance with the above Enforcement Decree, on the column of “official matters” on the website of the Korean Intellectual Property Office (hereinafter “instant test”).

C. However, on January 12 of the same year, the above announcement was deleted on 3 days, and on January 17 of the same year, the first examination on patent attorney examination was re-scheduled from the absolute evaluation system to the relative evaluation system (the examination results and number of applicants obtained at least an average of 60 points in all subjects), and at the same time, the second examination was published in the Official Gazette the notice of legislation of the Patent Attorney-Related Act that maintains the absolute evaluation system and passes at least the minimum number of successful applicants, and Article 4 of the Enforcement Decree of the Patent Attorney Act was promulgated and promulgated on 25 March 25 of the same year (Presidential Decree No. 17551). However, the above amendment of the Enforcement Decree of the Patent Attorney Act provided that "this Decree was enforced from the date of its promulgation," and that the above absolute evaluation system was not implemented, and the amendment of the Enforcement Decree of the former Enforcement Decree No. 251, May 26, 2005 (the amended Enforcement Decree No. 2751, May 26, 2015).

D. On March 26, 2002, the Defendant announced the 39th implementation plan for patent attorney examination (Public Notice No. 2002-7 of the Korean Intellectual Property Office No. 2002-7) as follows.

○ Minimum number of successful examinees: 200 persons

○ Decision on Successful Applicants

First test: Within five times the minimum number of successful examinees

In the second examination: A successful applicant shall be a person who has at least 40 points for each subject, and at least an average of 60 points for all subjects, but when the number of successful applicants is less than the minimum number of successful applicants, a decision shall be made in the order of precedence within the minimum number of successful applicants.

○ Examination Date

The first test: May 26, 2002

Second Test: August 28, 2002 and December 29, 2002

E. According to the absolute assessment system, the Plaintiffs applied for each of the instant examinations, and obtained at least 40 points in each of the instant examinations and an average of at least 60 points in all subjects. However, on July 25, 2002, the Defendant announced the list of 1,047 successful applicants of the instant examination, and the Plaintiffs excluded the Plaintiffs from the list of successful applicants on the grounds that the Plaintiffs’ score falls short of the average of 66.8 points, which are the successful applicants based on the relative assessment system, and treated the Plaintiffs as successful applicants of the instant examination (hereinafter “instant disposition”).

F. On October 22, 2002, Plaintiff 240 and two others appealed against the Seoul Administrative Court after having filed a lawsuit seeking revocation of the instant disposition. The appellate court (2003Nu4111) declared a judgment of revocation of the failure to pass the first examination, and the enforcement decree of the amendment, which provides for the relative evaluation system of the first examination in the Supreme Court (2003Du12899) on November 16, 2006, cannot be allowed in light of the principle of trust protection under the Constitution. Thus, the part of the supplementary decree of this case, which provides that the enforcement decree of the first amendment shall be implemented immediately in the instant examination, is unconstitutional and invalid in violation of the Constitution, and the decision of winning Plaintiff 240 et al. was finally affirmed by the Defendant’s final appeal against the Plaintiffs on December 20, 206. Accordingly, the Defendant issued an additional disposition to pass the examination against the Plaintiffs on December 20, 2006.

G. The time required for passing the instant examination is different depending on the personal circumstances of the examinee, and the amount to be examined in each examination subject is required, or the overall three to four years of age is required as a whole in that the number of successful examinees over 26 years of age reaches 70% of the entire successful examinees, and even according to the Defendant’s assertion, the basic preparation period is required for at least one year.

(h) The relevant laws and regulations relating to patent attorney examinations are as follows:

Patent Attorney Act

Article 4-2 (Patent Attorney Examination)

(1) The Commissioner of the Korean Intellectual Property Office shall conduct patent attorney examinations.

(2) A patent attorney examination shall consist of preliminary and secondary examinations.

(3) Subjects of patent attorney examinations and other necessary matters shall be prescribed by Presidential Decree.

Article 4-3 (Partial Exemption from Examinations)

(3) Any person who has passed the preliminary examination shall be exempted from the preliminary examination limited to the next preliminary examination.

Enforcement Decree of the Patent Attorney Act (amended by Presidential Decree No. 16867 of Jun. 27, 2000 and amended by Presidential Decree No. 17551 of Mar. 25, 2002)

Article 2 (Holding and Publication of Patent Attorney Examination)

(1) Patent attorney examinations (hereinafter referred to as "examination") pursuant to the provisions of Article 4-2 of the Patent Attorney Act (hereinafter referred to as the "Act") shall be conducted once a year.

(2) The Commissioner of the Korean Intellectual Property Office shall publicly announce the following by not later than two months before the examination:

1. Method and date of the examination;

2. Subjects of examination;

3. Date and method of announcing successful examinees;

4. Place at which the application for the examination is delivered and received, and period for such delivery and receipt;

5. Other matters necessary for holding the examination.

Article 3 (Subjects and Method of Examination)

(2) The preliminary test shall be a multiple-choice written test and the secondary test shall be an essay-type test.

(3) Any person who fails to pass the preliminary examination shall be prohibited from applying for the secondary examination: Provided, That the foregoing shall not apply to any person exempted from the preliminary examination.

Article 4 (Criteria for Passing of Examination)

A person who obtains at least 40 points in each subject out of 100 and an average of at least 60 points in all subjects shall be determined as a successful applicant in determining successful candidates for the first and second examinations.

ADD.

(1) This Decree shall enter into force on July 1, 200: Provided, That the amended provisions of Article 4 shall enter into force on January 1, 2002.

Enforcement Decree of the Patent Attorney Act (amended by Presidential Decree No. 17551 of March 25, 2002)

Article 2 (Holding and Publication of Patent Attorney Examination)

(1) The patent attorney examination (hereinafter referred to as the "examination") provided for in the provisions of Article 4-2 of the Patent Attorney Act (hereinafter referred to as the "Act") shall be conducted once a year.

(2) The Commissioner of the Korean Intellectual Property Office shall publicly announce the following by not later than two months before the examination:

1. Method and date of the examination;

2. Subjects of examination;

3. Date and method of announcing successful examinees;

4. Place at which the application for the examination is delivered and received, and period for such delivery and receipt;

4-2. Minimum number of successful examinees in the secondary examination; and

5. Other matters necessary for holding the examination.

Article 4 (Criteria for Passing of Examination)

(1) Successful examinees shall be determined in the order of high score points in all subjects in consideration of the results of the examination and the number of examinees, from among those who score not less than 40 points in each subject out of 100 and an average of not less than 60 points in all subjects, based on the perfect score in all subjects.

(2) A person who obtains at least 40 points in each subject out of 100 and an average of at least 60 points in all subjects in the secondary examination shall be determined as a successful applicant: Provided, That where the number of successful applicants who obtain at least an average of at least 60 points in all subjects falls short of the minimum number of successful applicants under Article 2 (2) 4-2, successful applicants shall be determined in the order of high score based on the average score for all subjects from among those who obtain at least 40 points in each subject.

(3) In determining successful candidates pursuant to the proviso to paragraph (2), if the successful candidates exceed the minimum number of successful examinees, all of the relevant successful examinees shall be determined by passing the examination. In such cases, the calculation of passing examination shall be calculated up to the second place below the decimal point.

ADD.

This Decree shall enter into force on the date of its promulgation.

[Ground of recognition] Facts without dispute, Gap 1 evidence, purport of whole pleadings

2. The assertion and judgment

A. The plaintiffs' assertion

Article 4 of the former Enforcement Decree of the Patent Attorney Examination as an absolute evaluation system in order to prevent administrative confusion due to a sudden change in the selection criteria of successful applicants. Article 4(1) of the former Enforcement Decree of the Patent Attorney Examination was applied to the instant examination by converting the first examination into a relative evaluation system, allowing the first examination to be implemented immediately without any transitional provisions in the Addenda of the instant case. Upon the enactment of the former Enforcement Decree of the Patent Attorney Examination, the Plaintiffs believe that the examination of this case was implemented as an absolute evaluation system while maintaining the average difficulty of the first examination, and that the examination of this case would pass the examination of this case more than 40 points in each subject and an average of 60 points in all subjects, and that the examination preparation was made accordingly. Even if such trust of the Plaintiffs is deemed unconstitutional, it is difficult to deem that the Plaintiffs were subject to the legislative discretion of the State itself, which is unconstitutional, due to the above provision’s mental distress, and thus, it is unlawful for the Plaintiffs to pay damages due to the Defendant’s breach of the above provision, which is an unlawful disposition of this case’s penal negligence.

B. Determination

(i)the occurrence of liability for damages

㈎ 이 사건 처분의 위법성

According to the above facts, if the first examination is based on the absolute evaluation system, more successful examinees than the previous one has been expected to be more successful than the previous one. While the first examination was implemented with a considerable grace period when converting the first examination into an absolute evaluation system, it seems that the successful examinees of the patent attorney examination conducted the first examination in a way that meets the passing standards under the trust that the examination would be conducted under the Enforcement Decree prior to the amendment was exercising reasonable and justifiable trust. The plaintiffs who passed the passing standards under the absolute evaluation system based on such trust and failed to pass the examination is left for more than two months, and the passing standards under the absolute evaluation system are immediately implemented, and it is difficult to consider that the implementation of the second evaluation system under the amended Enforcement Decree would result in enormous problems in the preparation due to the change of the passing standards, and thus, it is difficult to deem that the second evaluation system under the amended Enforcement Decree would immediately violate the public interest purpose and to immediately implement the amended Enforcement Decree.

Therefore, it is not permissible to implement the revised enforcement decree, which provides for the relative evaluation system for the first examination, in light of the principle of protection of reliance in the Constitution. Therefore, the part that stipulates that the revised enforcement decree shall be immediately implemented for the examination of this case is unconstitutional and invalid, and the disposition of this case against the plaintiffs by applying the provision that violates the Constitution like the Commissioner of the Korean Intellectual Property Office is unlawful.

In regard to this, the defendant argued that the implementation of the relative evaluation system is not illegal because it is a binding act, not a discretionary act, since it is a binding act. However, the defendant asserts that there is no negligence on the part of the Commissioner of the Korean Intellectual Property Office who issued the disposition in this case due to such a circumstance, the disposition in this case shall not be deemed unlawful.

㈏ 객관적 주의의무 위반으로 인해 이 사건 처분이 객관적 정당성을 상실할 정도인지 여부

Even if any administrative disposition is revoked after an administrative disposition, it cannot be determined that the pertinent administrative disposition is caused by the intention or negligence of a public official immediately and constitutes a tort by virtue of res judicata, and it is reasonable to deem that the public official in charge of such administrative disposition satisfies the requirements for State compensation under Article 2 of the State Compensation Act in a case where it is recognized that such administrative disposition has lost objective legitimacy by failing to perform objective duty of care when considering the public official's standard. In this case, whether it has lost objective legitimacy should be determined by taking into account all the circumstances such as the type and nature of gains of infringement, the form and reason for the administrative disposition being infringed, the degree of involvement of the victim in the exercise of the administrative disposition, and the degree of damage (see Supreme Court Decision 9Da7060, May 12, 200, etc.).

With respect to this case, since a patent attorney examination is a social system for granting a certain qualification to a person with a certain qualification, legal interests infringed upon by an administrative disposition related to the determination of passing the examination can be included in part of social or public interests, as well as personal interests. However, Article 4 of the Enforcement Decree prior to the amendment sets a grace period of more than one year and six months to alleviate the shock that may arise as a result of the change from a relative evaluation system to an absolute evaluation system, while the amendment sets a grace period of more than one year and six months to prepare for this, the amendment Enforcement Decree promulgated the examination of this case at a time without any transitional provision and enforced immediately from the date of the amendment without any transitional provision. The reasons for returning the examination method to the existing counterpart evaluation system without any transitional provision under the Enforcement Decree and the Addenda of this case are to be justified at least for the first time of the first time examination and to ensure more than a certain level of confusion that the first time examination results from the amendment of the Enforcement Decree of the Patent Attorney Act by raising the first time examination to the first time examination.

As to this, the Defendant’s failure to pass the instant disposition is based on the Addenda of the instant case. Since the instant Addenda was created by the legislative action that grants a wide range of freedom, it cannot be recognized as a matter of course on the sole basis of the fact that the legislative act violates the Constitution. In the instant case, it shall not be enacted in violation of the Enforcement Decree of the Korean Intellectual Property Office Amendment or the Patent Attorney Act at the time of the enactment of the Addenda of the instant case, but shall take effect upon the lapse of 20 days from the date of its promulgation unless otherwise expressly provided for in Article 53(7) of the Constitution and Article 53(7) of the Constitution providing that “Presidential Decree, Ordinance of the Prime Minister, and Ordinance of the Ministries shall take effect upon the lapse of 20 days from the date of its promulgation,” and that “Acts, Presidential Decree, Ordinance of the Prime Minister, Ordinance of the Prime Minister, and Ordinances directly related to the restriction on the rights of the people or the imposition of obligations shall take effect at least 30 days after the date of its promulgation, and shall not be determined to the Commissioner of the Korean Intellectual Property Office.

However, if a public official involved in an administrative legislation enacted enforcement decree in violation of superior laws and regulations due to lack of knowledge of the relevant laws and regulations or lack of necessary knowledge, it cannot be said that there is no negligence on the part of the public official who is not a legal expert (see Supreme Court Decision 95Da32747, Oct. 13, 1995, etc.). However, even if there is no right of examination of the relevant laws and regulations, such as the Commissioner of the Korean Intellectual Property Office, etc. participating in the legislation of the amended Enforcement Decree and its Addenda, even if there is no right of examination of the Acts and subordinate statutes, the examination in this case is conducted with a reasonable point of time and method of implementation, etc. to prevent the confusion of the examinees in preparing the amended Enforcement Decree and its Addenda to the former counterpart evaluation system, which could prevent excessive violation of the trust of examinees including the plaintiffs, but it is sufficiently recognized that the above public official's negligence was enacted and applied by neglecting such duty of care, and the enactment and application of the amended Enforcement Decree and its Addenda Article 13(2).

Therefore, it is clear in light of the empirical rule that the plaintiffs suffered a considerable mental suffering due to the illegal disposition of the public official concerned such as the Commissioner of the Korean Intellectual Property Office, etc., so the defendant is obliged to pay monetary compensation for the mental suffering suffered by the plaintiffs due to the disposition of this case illegally committed by negligence of public official.

Dor Scope of Liability for Damage

With respect to the amount of consolation money to be paid by the Defendant to the Plaintiffs, the amount of consolation money shall be determined at KRW 3,00,000, respectively, in consideration of all the circumstances shown in the pleadings of the instant case, including: (a) health class, Plaintiffs’ age, academic background, social status; (b) importance and reliability of the patent attorney examination in the Plaintiffs’ B or educational background and social status; (c) the degree and frequency of the Defendant’s fault; and (d) the degree of the Defendant’s fault if the Plaintiffs had faithfully prepared the instant examination; and (e) the Plaintiffs could have passed the instant examination irrespective of the method of conducting the instant examination; and (e) the Plaintiffs were given the opportunity to take the second two-time patent

3. Conclusion

Therefore, the defendant asserts that the defendant's claim for State compensation against the defendant was made from November 16, 2006, when the Supreme Court decision that the part of the supplementary decree of this case which stipulates that the defendant shall immediately conduct the examination of this case is in violation of the Constitution and is null and void since it was rendered on July 25, 2002, which is the disposition date of this case (the defendant's assertion is without merit) as consolation money, and that the defendant can claim for state compensation against the defendant from November 16, 2006. However, the situation that the administrative disposition was revoked in an appeal litigation and whether the administrative disposition constitutes tort by a public official and constitutes tort under Article 2 of the State Compensation Act is separate from each other. Thus, the defendant's argument is without merit) as to the existence and scope of the defendant's obligation to perform, and the defendant's claim for compensation from the next day of this case to May 28, 2010 shall be dismissed within the scope of the plaintiff's obligation to pay the remainder of this case's damages for delay.

[Attachment]

Judges Lee Ho-ho (Presiding Judge)