변리사회 의무가입조항의 위헌성 검토- 헌재 2017. 12. 28. 2015헌마1000 결정을 중심으로 -

The Korean Patent Attorneys Association is a private association in the interpretation of the patent attorney's law. This case entry clause limits the claimant's freedom of passive association or the freedom of performing his or her profession by obliging lawyer-turned-property lawyers to join the kpaa. This case entry clause could strengthen the representation and legal status of the kpaa by increasing the rate of patent attorneys joining to the kpaa. Furthermore, the court's opinion believes that the purpose of legislation can be justified as it can achieve the development of industrial property rights, the enhancement of the dignity and work of patent attorneys, the establishment of a public-private partnership system for intellectual property rights, and the performance of public utilities, such as free patenting, by strengthening the representation and legal status of the kpaa. However, no objective statistics or data can be found that the development of the nation's industrial property rights system has been hampered, the dignity of patent attorneys has been reduced and the work improvement has been hampered during the period of the voluntary registration system in the kpaa. Rather, applications for intellectual property, including patents, were higher during the period when the voluntary subscription system was implemented than during the period when the mandatory registration system for the kpaa was enforced. The establishment of a public-private partnership system for intellectual property rights is achieved through the promotion of policy opinions of the kpaa related to the intellectual property industry, which is naturally included in the purpose of establishing kpaa. The Patent Attorney Act does not force patent attorneys to carry out public utility projects such as free patent, and the Patent Attorney Act does not have any regulations regarding public interest projects. Therefore, this case entry clause is only suitable for strengthening the representation and legal status of the patent society by increasing the rate of accession to the kpaa, and the reasons for establishing a public-private partnership system and performing public works are difficult to recognize the legitimacy of the purpose and the suitability of the method. There is an alternative means of allowing patent attorneys to join the kpaa arbitrarily or recognizing multiple patent attorney groups in a way that does not restrict patent attorneys' freedom of passive association while achieving the legislative purpose pursued by this case entry clause, which violates the principle of minimum damage. In addition, this case entry clause is in violation of the principle of balanced legal interest, as the degree of restriction on the freedom of passive association resulting from inhibiting the emergence of rival groups is very large, while the legislative purpose to achieve through this case entry clause is only to strengthen the representation and legal status of kpaa with nothing to do with the public interest. In the end, it would be said that this case entry clause violates the rule of over-restraint in Article 37(2) of the Constitution and violates the essential contents of the claimant's freedom of passive association or freedom of occupation.