Plaintiff 1 and two others (Law Firm Jeong-il, Attorney Seo-Gyeong et al., Counsel for the plaintiff-appellant)

The Commissioner of the Korean Intellectual Property Office (Attorney Shin Chang-chul et al., Counsel for defendant-appellant)

September 2, 2003

Seoul Administrative Court Decision 2002Guhap35475 delivered on January 30, 2003

1. Revocation of a judgment of the first instance;

On July 25, 2002, the defendant revoked the 39th patent attorney examination failure disposition against the plaintiffs, respectively.

2. The total costs of the lawsuit shall be borne by the defendant.

The same shall apply to the text.

1. Basic facts

The following facts may be acknowledged either in dispute between the parties or in accordance with Eul evidence 1-1, Eul evidence 2, Eul evidence 3, Eul evidence 4-1, 2, Eul evidence 7-9, Eul evidence 10-1 through 6, and Eul evidence 10-6.

(a) Change of the patent attorney examination system and the process of the examination in this case;

(1) Upon 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 a successful applicant has passed a certain score (40 points for each subject and an average of 60 points for all subjects) (Article 4 of the Enforcement Decree of the above Act). The Regulatory Reform Committee decided to convert the Regulatory Change into a qualification Evaluation System where a successful applicant, such as a patent attorney, has passed a certain score to increase the number of persons to be selected at a general meeting on July 34, 199. However, the above absolute Evaluation System was implemented from January 1, 2002 (proviso 1 of the above Enforcement Decree).

(2) 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 “official matters” column on the website of the Korean Intellectual Property Office (hereinafter “instant test”).

(3) However, on January 12 of the same year, the above announcement was deleted on the 3th day of the same year, and on January 17 of the same year, the first examination on the patent attorney examination was re-scheduled from the absolute evaluation system on the grounds that "for efficient test management", the first examination on the grounds that "the first examination is conducted at least 40 points in each subject, an average of 60 points in all subjects," and at the same time, the second examination was announced in the Official Gazette that the second examination would maintain the absolute evaluation system and pass the minimum number of successful applicants, taking into account the examination results and the number of successful applicants, and the second examination was announced in the Official Gazette. On March 25 of the same year, Article 4 of the Enforcement Decree of the Patent Attorney Act was amended and promulgated in the same content as the above pre-announcement (Presidential Decree No. 17551). However, the above amendment of the Enforcement Decree on the 17th day before the amendment of the former Enforcement Decree on the 20th day after the amendment was implemented.

(4) Meanwhile, the examination subjects were partially changed according to the introduction of an absolute evaluation system in addition to the above modification of passing criteria. The first examination of the three subjects of the essential subject (the Patent Act, the Utility Model Act, the amendment of the Civil Act, the amendment of natural science), and the first examination of the first subject (the 7 foreign languages including English) (the 7 foreign languages). The scope of the above "Patent Act and the Utility Model Act" has been expanded to "Industrial Property Rights Act, the Utility Model Act, the Trademark Act, the Design Act, and the Design Act, the "Industrial Property Rights Act" as "Industrial Property Rights Act, the Patent Act, the Utility Model Act, the Trademark Act, and the Design Act," while the said "Industrial Property Rights Act, the English language only left and the selective subject was changed to 4 of the essential subject as a result (see related Acts and subordinate statutes). However, considering that the previous score of English was relatively relatively difficult compared to the score of other foreign languages, the examination subjects have been substantially increased, and the changes in the above subject have the effect of making it difficult to gain.

(5) The status of successful applicants in the patent attorney examination for five years prior to the examination of this case is as follows. The time required to pass the examination is different depending on the personal circumstances of examinees. However, in that the number of successful applicants who are 26 years of age or older is about 70% of the total successful applicants, at least three to four years as a whole, and even according to the defendant's argument, the basic preparation period is required for more than one year.

(unit: Name and point)

In the year of entry into the main sentence, 61.92 198 3,198 3,198 70.630 (82.5%) 82.04 62.04 19995,001 357 757 71.25 705 405 71.92 61.92 1998 3,198 276 70.630 (82.5%) 80 609 525 (86.2%) 81 62.75 200,674 6098 9308 7305 7374,6375 208 7.3746,6375 705 7.3756,6379

(6) On March 26, 2002, the Defendant announced the implementation plan for patent attorney examination (Public Notice No. 2002-7 of the Patent Office No. 2002-7) on March 26, 2002, and the main contents are 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

○ Subjects and Method of Examination

First Examination: guest-choice type

Essential (4): Industrial Property Rights Act (including the Patent Act, the Utility Model Act, the Trademark Act, the Design Act, and treaties), the Civil Act Openings (excluding relatives, inheritances), natural science openings, English,

B. The plaintiffs' application and the defendant's rejection disposition

(1) The Plaintiffs applied for each of the instant examinations and obtained the scores as listed below.

Plaintiff 17.50 60.00 67.50 67.0 45.00 62.50 62.50 285.00 45.00 45.00 40.00 61.25 380.0 5.0 52.0 52.62

(2) On July 25, 2002, the Defendant announced the list of 1,047 successful applicants for the instant examination. The Plaintiffs excluded the Plaintiffs from the list of successful applicants on the grounds that the Plaintiffs’ scores fall short of the average of 6.88 points, which are the successful applicants based on the relative evaluation system, and treated the Plaintiffs as successful applicants for the instant examination (hereinafter “instant disposition”). The Plaintiffs obtained 40 points for each subject, which are the passing criteria under the absolute Evaluation System, and an average of 60 points for all subjects, as the Plaintiffs, and obtained 689 successful applicants who were disqualified in the instant examination.

2. Relevant statutes;

Patent Attorney Act

Article 4-2 (Patent Attorney Examination)

(1) The patent attorney examination shall be conducted by the Commissioner of Korean Intellectual Property Office.

(2) The patent attorney examination shall consist of the first examination and the second examination.

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

Article 4-3 (Partial Exemption from Examinations)

(1) A public official of Grade VII or higher belonging to the Korean Intellectual Property Office who has been engaged in patent administrative affairs for not less than ten years shall be exempted from the preliminary examination.

(2) Where a public official of Grade V or higher belonging to the Korean Intellectual Property Office who has been engaged in patent administrative affairs for not less than five years, all subjects of the first examination shall be exempted, and some of the subjects of the second examination shall be exempted, but the subjects exempted shall be prescribed by Presidential Decree

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

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 matters two months prior to 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)

(1) The subjects of the preliminary examination and the secondary examination shall be as shown in the attached Table 1.

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

(3) Any person who fails to pass the preliminary examination may not take the secondary examination: Provided, That this shall not apply to any person who is 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.

(2) Notwithstanding the provisions of Article 3, the subjects of the patent attorney examination shall be subject to the attached Table 2 until December 31, 2001.

[Attachment 1] Examination Subjects (Related to Article 3 (1)]

(a) The first examination (the fourth examination);

Industrial property rights (including the Patent Act, the Utility Model Act, the Trademark Act, the Design Act and the Treaty), the Civil Act, the general theory of inheritance (excluding relatives and inheritance), the natural scientific introduction, English.

(b) The second examination (the fourth examination);

Essential subjects (3) Patent Act (including treaties), Trademark Act (including treaties), Civil Procedure Act (excluding compulsory execution).

(1) One of the subjects of choice (including any treaty), administrative law, copyright law, economic source theory, industrial design, machinery design, mechanical design, heatology, chemical engineering, metal material, mineral treatment engineering, ship design, organic chemistry, chemical reaction engineering, chemical reaction engineering, cultivation institute theory, electrical self-gymology, circuit engineering, control engineering, communications theory, data structure theory, data structure theory, solid cooking, moleculal science, pharmaceutical science, pharmaceutical product manufacturing chemistry, fiber material engineering, vegetable engineering, architectural structure, concrete and reinforced concrete engineering.

[Attachment 2] Examination Subjects (Related to Paragraph 2 of the Addenda)

(a) The first examination (the fourth examination);

Essential subjects (3) Patent Act, Utility Model Act (including any treaty), Civil Act, General theory of Civil Act (excluding relative and inheritance), natural science introduction theory

One of the subjects of choice (1) in English, German, French, French, French, Chinese, Spanish, Spanish, Russian, Russian, one of the subjects of choice

(b) The second examination (the fourth examination);

Essential subjects (3) Patent Act (including treaties), Design Act (including treaties), Trademark Act (including treaties), Civil Procedure Act (excluding compulsory execution).

2) Two subjects from among the subjects of choice (2) administrative law, copyright law, industrial design, machinery engineering, mechanical engineering, mechanical design, thermal engineering, chemical field, physical field, chemical industrial chemistry, inorganic industrial chemical, inorganic chemical, electronic calculator, circuit theory, integrated engineering, semiconductor engineering, telecommunication engineering, physical science, fermentation engineering, chemical engineering, pharmaceutical product manufacturing science, textile material science, textile material engineering, construction structure science, concrete and steel morries engineering.

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 matters two months prior to 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 marks in all subjects in consideration of the results of the examination and the number of applicants, 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 full score in all subjects.

(2) A person who has obtained 40 or more points in each subject out of 100 points for each subject and an average of 60 or more points in all subjects in the secondary examination shall be determined as a successful applicant: Provided, That where the number of successful applicants who have obtained 60 or more points in all subjects is less than 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 have obtained 40 or more points in each

(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.

3. Whether the instant disposition is lawful

A. The parties' assertion

(1) The plaintiffs' assertion

Article 4 of the Enforcement Decree prior to the amendment, Article 4 of the Regulation Reform Committee (amended by Presidential Decree No. 2010, Jan. 1, 2002) applied a relative assessment system by converting the first examination into a relative assessment system and immediately implementing the first examination without any transitional provisions in the Addenda. Upon the enactment of the Enforcement Decree prior to the amendment, the plaintiffs believe that the first examination will be conducted as an absolute assessment system while maintaining the average difficulty of the first examination conducted even before the amendment, and that the examination will pass the examination at least 40 points in each subject and an average of 60 points in all subjects, and that the examination preparation was made accordingly in accordance with the Enforcement Decree of the Act to prevent administrative confusion due to a sudden change in the standards for selecting successful applicants. Since Article 4(1) of the Enforcement Decree of the Act is a constitutional trust in which the plaintiffs are constitutionally trusted, and thus, the provisions of the first examination are null and void because they are contrary to the principle of trust in the Constitution.

(2) The defendant's assertion

A wide range of legislative discretion is allowed to determine whether the passing criteria of the examination should be an absolute evaluation or a relative evaluation. The plaintiffs' assertion interest is not a legal interest to protect the Constitution, but a reflective interest or a remote expectation. Even if trust is required to be protected, restriction on the individual's trust interest is justified for public interest, such as proper test operation and management, and discharge of successful applicants above a certain level, and the defendant publicly announced the changes in the examination system with the maximum possible period of preparation in relation to the enforcement of the amended Enforcement Decree, and the change of the examination system was given to all examinees equally. Thus, Article 4 (1) and the Addenda of the amended Enforcement Decree do not violate the plaintiffs' trust and thus, the disposition of this case cannot be deemed unlawful.

B. Determination

(1) Principle of the protection of trust

The principle of trust protection is derived from the principle of a constitutional state under the Constitution. The content is that if the parties’ trust in the order of the former law is reasonable, reasonable, and reasonable, and if the public interest purpose to achieve a new legislation is unable to justify the destruction of the parties’ trust because the party’s damage caused by the enactment or amendment of the law is extreme, such new legislation may not be allowed in light of the principle of trust protection. On the other hand, to determine whether such a principle of trust protection is violated, on the other hand, the public interest purpose to be realized through new legislation should be comprehensively compared and balanced (see, e.g., Constitutional Court Order 2002Hun-Ba45, Nov. 28, 2002).

(2) Whether the plaintiffs' trust constitutes a constitutionally protected trust

The following two elements can be considered as a major criteria for determining which individual confidence in the continuation of the statute is protected to a certain degree:

(A) Estimated amendment of the statute

In general, the law can be revised at any time due to changes in the actual situation or changes in legislative policy, etc., and in particular, the patent attorney examination of this case conducted by the defendant is an administrative act with respect to the selection of a professional qualification company, and the scope of legislative discretion for public interest needs, such as changes in social demand, maintenance of qualification, qualification, and knowledge, appropriate utilization of state manpower, and reasonable operation of selection examinations, etc. Therefore, in principle, the plaintiffs can expect that the law can be changed according to circumstances. However, it cannot be said that the implementation of such change is always predicted to the extent that it is rapid to the extent that it moves into ordinary cases, and that it should be affected thereby.

Therefore, in this case, the plaintiffs should be deemed to have predicted Article 4 (1) of the Enforcement Decree of the Amendment, which returned the absolute assessment system to a counter-evaluation system, but it is very doubtful whether the exceptional supplementary provision that allowed the above amendment to be immediately implemented could have anticipated it.

In other words, Article 4 of the former Enforcement Decree prior to the amendment begins with the reflection that the selection of patent attorneys due to the relative evaluation system was not sufficient, and there was a resolution of the Regulatory Committee as above, and any person has been prepared for only one year through the amendment of the Patent Attorney Act, considering that it was sufficient time to implement the legislation, and the actual implementation of the Regulatory Committee has set a grace period of 1 year and 6 months from that time again for the relaxation of shock and preparation. However, the Regulatory Decree of the Regulatory Decree of the Regulatory Decree of the Regulatory Decree of the Regulatory Decree of the Regulatory Decree of the Regulatory Decree of the Regulatory Decree of the Regulatory Decree of the Regulatory Decree of the Regulatory Decree of the Regulatory Decree of the Regulatory Decree of the Regulatory Decree of the Regulatory Decree of the Regulatory Decree of the Regulatory Decree of the No. 2 of the Regulatory Decree of the Regulatory Decree of the Regulatory Decree of the No. 4 of the Regulatory Decree of the same year and the Regulatory Decree of the Regulatory Decree of the No. 2 of the Regulatory Decree of the Decree of the No. 26.

(b) Whether the induced trust has been exercised

The protection of an individual’s trust interest depends on ① whether an individual’s act under statutes is an exercise of trust induced in a certain direction by the State, ② whether an individual’s act falls under the scope of private risk burden as a matter of principle by utilizing an opportunity given by law. If an individual’s act under statutes is induced in a certain direction by the State beyond the utilization of the opportunity given by law, it may be recognized that an individual’s act is worthy of special protection, and, in principle, it may be deemed that an individual’s protection takes precedence over the amended interest of the State (see Constitutional Court Order 2002Hun-Ba45, Nov. 28, 2002).

However, considering the fact that the introduction process of the former Enforcement Decree before the amendment was basically trying to lower the entrance wall of a qualified company, and that the first examination passed during the previous years was 70 to 80 points, the State has normatively expressed the purport that if the applicants do not go beyond the average difficulty of the patent attorney examination conducted before the amendment and the average score of all subjects is 60 points, the applicants would be able to apply for the second examination (see Constitutional Court Decision 202Hun-Ma520, Oct. 31, 2002; Constitutional Court Decision 202Hun-Ma520, Oct. 31, 2002). In view of the fact that the preparation period for the examination was more than one year and the grace period of the former Enforcement Decree was more than one year and 1 year and 6 months, all of the subjects including the Plaintiffs were more than reliance on the implementation of the previous Enforcement Decree during the grace period, and such applicants, including the Plaintiffs, have made efforts to make up the remainder of the examination period and the opportunity to apply the second amendment.

(3) Compared with the public interest promoting the plaintiffs' trust infringement

In light of Article 4(1) of the Enforcement Decree of the amended Act and Article 4(1) of the Addenda, the public interest gained by the defendant through the public announcement of the examination of this case with only one day from the date of promulgation can be considered to avoid concerns over causing harm to the appropriateness of the operation and management of the examination of this case, and to secure the selection of applicants who passed the examination of this case at a certain level by raising the pass of the examination of this case. However, even if applicants who failed to pass the examination of this case meet the pass standards of the Enforcement Decree prior to the amendment but failed to pass the examination of this case, including the plaintiffs, are 689 persons including the above, and 1,736 persons who failed to pass the examination of this case and 731 persons who are exempt from the first examination of this case are no longer than 2,467 persons to undergo the examination of this case (i.e., the number of applicants subject to the second examination of this case, 689 + 7100 persons to be exempted from the examination of this case).

On the other hand, the plaintiffs, who were the subjects of patent attorney examination, who need to prepare for a period of free competition, continue to hold a grace period of not less than one year and six months, as seen earlier, and trust in the new passing standards, have caused severe damage to their trust and interference with the preparation of the examination by making a sudden change before the date of the examination announcement of this case and immediately implementing the examination without any transitional provisions. Thus, the plaintiffs' interests infringed and the public interest as seen above cannot be seen as having been balanced.

(4) Whether the amended Enforcement Decree applies equally to all examinees

Furthermore, unlike the examinees of the examination in this case, which suffered from an outbreak according to the amendment of the Enforcement Decree of this Act, the persons exempted from the first examination (referring to the persons who have been engaged in patent administrative affairs for not less than 10 years as public officials of Grade 7 or higher belonging to the Korean Intellectual Property Office, and those who have passed the first examination in the previous year. See Article 4-3 of the Patent Attorney Act) are likely to pass the second examination as the subjects subject to competition in the second examination have decreased together with the second examination (the second examination is an absolute evaluation system but the minimum number of successful examinees has been determined, so relative evaluation factors are included). The patent attorney examination is qualified as patent attorney only after the second examination. Thus, the Enforcement Decree of the amended Act does not treat all examinees fairly.

(c) Conclusion

Thus, Article 4(1) of the Enforcement Decree of the amended Act, which provides for the conversion into a health class and a counter-evaluation system, does not mean that it belongs to the legislative discretion of the State and is unconstitutional. However, the supplementary provision that is to implement such a modification, i.e., excessive infringement on the plaintiffs' trust, and thus null and void as it violates the Constitution. Therefore, the defendant cannot apply the provision of Article 4(1) of the amended Enforcement Decree to the examination of this case to the plaintiffs. Thus, the disposition of this case made by the defendant against the plaintiffs by applying this provision is unlawful.

4. Conclusion

Therefore, the plaintiffs' claims seeking the cancellation of the disposition of this case are accepted with reasonable grounds, and the judgment of the court of first instance is unfair with different conclusions, and it is so revoked, and it is so decided as per Disposition with the decision to cancel the disposition of this case.

Judges Lee Dong-bok (Presiding Judge)