권리범위확인심판에 대한 심결취소소송에서 소의 이익

Interest of Litigation for the Annulment Litigations for the Decisions of Trials to Confirm the Scope of Patent Right: Especially on the cases with civil infringement litigations pending

The duality of the legal characteristics in the annulment litigations brought to the Patent Court of Korea for the decisions of trials to confirm the scope of patent right by the Patent Tribunal of Korea - declaratory characteristics of the trials as to declare the scope of patent right and constitutive characteristics of the annulment litigations as to annul the decisions by the litigation based on the provisions of the statute - seems to have contributed to the explicitly incompatible decisions by the Patent Court and the Supreme Court of Korea. Judicial hierarchy in proper meaning can not be attributed between the Patent Tribunal of Korea as an administrative branch of the government and the Patent Court of Korea as a judicial branch of the government. Litigations to annul the decisions by the Patent Tribunal, therefore, are intrinsically constitutive litigations and this makes the interest of litigation can not be deniable to the annulment litigations since the litigations are based on the provisions of the Patent Act. Substantial hierarchy, however, may be attributed between the Patent Tribunal and the Patent Court, in that the decisions are reviewed by and only can be vacated and remanded by the Patent Court. The annulment litigations, therefore, can be characterized as declaratory litigations requiring supplementary doctrine as found in the civil declaratory litigations. But the supplementary doctrine can not be applied in accordance with the precedent by the Supreme Court since the litigation is an administrative litigation. This also makes the interest of litigation undeniable to the annulment litigations brought to the Patent Court for the decisions delivered by the Patent Tribunal of Korea.