Republic of Korea has joined most of international treaties/agreements relating to intellectual property including the Berne Convention for the Protection of Literary and Artistic Works (“Berne”), the Paris Convention for the Protection of Industrial Property (“Paris”), International Convention for the Protection of New Varieties of Plants (“UPOV”), Patent Cooperation Treaty, Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure, WIPO Copyright Treaty, WIPO Performances and Phonograms Treaty, Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of their Phonograms, Universal Copyright Convention and so on. According to Article 6 of the Constitution of Korea, all the international treaties/agreements which have been ratified by the National Assembly (or Congress of Korea) have the same effects in Korea as statutes enacted by the National Assembly. Does this Constitutional provision mean that judicial courts of Korea do not have to wait for the National Assembly to enact relevant domestic statutes but simply rely on the international treaties/agreements themselves? Theoretical debates on self-executiveness of international treaties/ agreements, however, may not reflect the reality in practice. In most cases, the National Assembly has enacted all the relevant statutes before ratifying international treaties/agreements so that judicial courts of Korea usually look to domestic statutes only. Even when the international treaties/agreements matter, the judicial courts usually interpret them as having already been reflected into the relevant provisions of domestic statutes with the result that the courts come to the same conclusion under the international treaties/agreements as under the domestic statutes. There may be conflicts between international treaties/agreements and domestic statutes, however, when relevant provisions of a domestic statutes have not been enacted or amended to reflect the international reaties/agreements well and enough. For example, when a relevant provision of an international treaty/ agreement is specific and detailed enough to be interpreted as “self-executive” provision (as is the case in Article 6ter (3)(a) of the Paris Convention for the Protection of Industrial Property with regard to state emblems, official hallmarks, and emblems of intergovernmental organizations) and when a relevant domestic statute lacks its counterpart provision, then the judicial courts of Korea have no alternative but to depend upon the international treaties/agreements. On the other hand, when an international treaty/agreement is vague or abstract in its provision, judicial courts of Korea have a tendency to rely on relevant domestic statutes rather than attempting to look to the spirit and meaning of the treaty/agreement. Under the TRIPs, however, any domestic statute of its member country which is not in compliance with its provision may be brought to the Dispute Settlement Body (DSB) of the WTO and may be subject to retaliatory remedies.Considering the impact of the TRIPs on trade as well as on domestic laws, the judicial courts of Korea will have to look to any relevant international regime with more care and attention than before.
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