일사부재리 원칙의 판단 기준 시점

Abstract

This is a commentary on the Supreme Court en banc decision 2009Hu2234 decided January 19, 2012. The main issue was determining the appropriate trial request period regarding Article 163 (Res judicata) of the Patent Act. This en banc decision overturned its prior panel decisions, such as 97Hu3661 of June 23, 2000 and 2003Hu427 of May 26, 2006, which held that the principle of Res judicata (hereinafter, “the principle”) under Article 163 should be applied not from the time of trial request, but from the time of trial decision. Under such Supreme Court precedents, the principle not only applies to a trial requested after a certain trial's decision is finalized and registered or a judgment becomes conclusive, but also applies to any pending trial if the decision of other trial requested based on the same facts and evidence was already finalized and registered as from the time of decision for the pending trial, regardless of whether the pending trial was requested before the registration of the finalized decision or not. However, the decision can excessively infringe a trial requester's constitutional right to trial, since a procedure proceeded by the trial requester for his/her own interests is rendered retrospectively illegitimate by fortuitous circumstance like the registration of a third party's finalized decision regarding the same patent. Such consequences render the decision that revoked the Korean Intellectual Property meaningless. For this reason, the Supreme Court unanimously held that the period for trial request should be decided as time of request for trial and the principle does not render the request for trial illegitimate where the other trial decision requested based on the same facts and evidence is finalized and registered after the trial request. This is a rational interpretation of Article 163 of the Patent Act which provides “a trial cannot be requested” in pertinent part, and a trial requester's right to trial by judges can be guaranteed by this decision. This commentary reviews commentator's perspectives and court decisions both in Korea and in foreign jurisdictions, points out the problem related to the application of the principle concerning the time of trial decision, and examines what effect this en banc decision may have on patent practice.