특허행정심판의 헌법적 지위-필요적 행정심판전치주의를 적용하는 현행 특허심판제도의 위헌 여부, 즉 사법절차의 준용 여부-

Article 107(3) of the Constitution allows administrative remedy system, which is divided into an optional one and a mandatory one. If a mandatory administrative remedy system is applied, the system should mutatis mutandis apply judicial procedure. This paper discusses whether such judicial procedure is mutatis mutandis applied to the patent trial and appeal system, where a mandatory administrative remedy system is applied. For the discussion, this paper compares the current patent trial and appeal board with the old “Local Tax Committee”, which was decided by the Constitutional Court not applying judicial procedure and the old “Industrial Accident Compensation Committee”, which was decided by the Constitutional Court applying judicial procedure. In comparing, 1 to 5 scores were given to both institutions on (1) independency and neutrality, (2) adversary structure and (3) protection of procedural rights respectively, to find it difficult to decide the current patent trial and appeal system unconstitutional. This paper clarifies that current patent trial and appeal system is the most corresponding with the mandatory administrative remedy system among all other administrative trials and appeals, under the following four aspects of (1) simple and speedy remedy, (2) reduction of court burden, (3) exploitation of expertise of administrative agents and (4) autonomous administrative regulation. It is evaluated that the patent trial and appeal has the strongest necessity to apply the mandatory administrative remedy system among all other administrative trials and appeals. In that regard, such a proclaim that an optional administrative remedy system be applied to the patent trial and appeal is necessarily linked to an idea that an mandatory administrative remedy system is not allowed at all (regardless of its characters) in the Republic of Korea. As the Constitution admits a mandatory administrative remedy system, it is difficult not to apply the mandatory administrative remedy system to the patent trial and appeal. Especially, it should be recognized that an optional administrative remedy system will result in heightened patent invalidation rate.