지적재산권에 관한 국제적 법질서와 국내법

Abstract

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...