WTO 협정과 국내법 ― 한․일간 PDP 특허 관련 무역분쟁의 시사점 ―

Abstract

A series of disputes arose between Korea and Japan, which involved patent infringement claims for PDP products. In the first dispute between Samsung and Fujitsu, the Customs Office of Japan suspended liquidation of Samsung's imported PDP products into the Japanese market. In return, in the second dispute between LG and Matsushita, the Korean Trade Commission (“KTC”) granted a provisional measure which enabled the Customs Office of Korea to suspend liquidation of Matsushita's PDP products into the Korean market. Although both disputes were resolved as a result of settlements, these disputes triggered an important issue of whether suspensions of liquidations in both cases are inconsistent with Part III, Sections 3 & 4 of the TRIPS Agreement. This paper analyzes this. This paper demonstrates that the Customs Tariff Law of Japan is inconsistent with Article 53 of the TRIPS Agreement in terms of its time limit for release of suspension which is established under Article 21-5 of the Customs Tariff Law of Japan. In consequence, suspension of liquidation by the Customs Office of Japan is also inconsistent with the same article under the TRIPS Agreement. It appears that the same measure is in violation of national treatment obligations under the TRIPS and GATT Agreements. On the other hand, this paper shows why and how the KTC’s provisional measure and its related measure, suspension of liquidation by the Korean Customs Office, can be consistent with relevant provisions of the TRIPS Agreement. The author also argues that the conformity with the TRIPS Agreement would most likely justify a possible violation of national treatment principles. In conclusion, this paper highlights that a WTO Member’s ensuring WTO conformity would guarantee an advantageous position of its national enterprises in dealing with its foreign competitors.