法令의 改定과 信賴保護의 原則

Abstract

This paper discusses the decision of the Korean Supreme Court, 2006. 11. 16. 2003두12899 en banc judgment. The Patent Lawyer Act Administrative Decree revised on March 25, 2002 as Presidential Decree No.17551 changed the patent lawyer examination system from the absolute evaluation system(AES) to comparative evaluation system(CES). Some applicants for the exam failed to pass the patent lawyer examination executed according to the newly revised presidential decree. They raised a lawsuit against the commissioner of the Korean Intellectual Property Office(KIPO) who executed the exam. They claimed that the commissioner's rejecting the applicants for the exam was illegal because the presidential decree marker infringed the patent lawyer exam applicants' trust in further existence of AES and the enforcement of the revised decree without grace period violated the constitutional principle so called the prohibition of retroactive law. The Korean Constitutional Court and dominating scholars’ theory categorize the retroactive laws into genuine retroactive law and quasi-genuine retroactive law reviewing the infringement against the individual protection of trust caused by a retroactive law. Undoubtedly, the Court and the theory followed the decision of the German Federal Constitutional Court without any reservation. The supreme court's decision I discuss on also used as a tool ‘the concept of comparison with conflicting benefits and protections of law’ when it reviewed whether the fact fell within ‘the principle of protection of trust’. The Supreme Court decided that the applicants’ legal benefit is more important than the public benefiits through enforcement of the revised presidential decree. The applicants for patent lawyer exam could not expect from the common sense point of view that the president decree which had been changed from the CES to the AES on Junse 27, 2000 would be revised again into the CES without executing the AES at least once and would be exrcuted without grace period. Just two months before the exam would be hold in accordance with the AES, the presidential decree was revised and executed without grace period. Thus this revision changed the passing mark of the exam so that applicants had lots of hardships to prepare the exam. This further infringed them protection of the applicats’ trust in the previous exam system, the AES which set the passing mark such as 40 points at each subject and 60 points at average. The disadvantage of the applicants who failed to the newly executed exam was grave because many of them could have passed the exams under the AES. However, the public good which the r evised presidential decree pursued was to downsize the passing number of the primary examination and to raise the passing mark so that it expedited the efficiency of the enforcing the secondary examination. I raised a question in this paper about the necessity and ambiguity of the concept, 'genuine retroactive law and quasi-genuine retroactive law which the supreme court used as a theoretical basis to decide the above case. Even though I raised the question, I follow the majority opinion of the decision in conclusion because at present there is no established alternative theory in this topic.