일사부재리 위반을 이유로 한 각하 심결에 대한 취소소송의 심리범위

Abstract

Article 163 of the Patent Act is the acceptance of Japanese law provisions that counted Austrian legislation. The rule was abolished in Austria due to the Constitutional Court’s unconstitutional decision, and Japan excluded the third effect by revising the law in 2011. However Korea has reached the present subjective scope and objective scope without any actual changes from the time of legislation. The recent Supreme Court Decision 2018Hu11360 stated that the standard for judging of the non bis in idem principle is at the time of the trial ruling, and that new claims in the lawsuit for cancellation are not allowed. The purpose of the principle of non bis in idem and an efficient resolution of relevant dispute, there is no reason to deny such new claims in the lawsuit. Considering unlimited hearing scope of revocation action of administrative decision and the supreme court decision regarding the final and conclusive of the preceding ruling is a request the administrative trial is inevitably set only to minimize the limitation of the rights of third parties, new facts or evidence should be submitted in the lawsuit for cancellation of a decision on the grounds for breach of non bis in idem.