특허절차에 있어서 대리제도의 현황과 문제점

• 영문명: The Present Status and Problem of Procuration System in Patent Procedure
• 발행기관: 원광대학교 법학연구소
• 저자명: 정용익(Jeong, Yong-Ik)
• 간행물 정보: 『원광법학』제27권 제3호, 191~224쪽, 전체 33쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2011.09.30

영문 초록

Procuration system is defined to be an institution that another person presents or accepts an expression for the principal so that the effect of law happens on the principal. In addition, in the case of representation of mandate, it is an expansion of private autonomy in the sense that one, with own intention, lets the third person commit a legal act and receives an effect. In the case of legal representation, the legal incompetent commits a valid legal act through a legal representative, and it has a function of supplementing private autonomy. However, it can be considered as an expansion of private autonomy in the respect that it creates a legal effect to the principal, for the principal on the premise of the intention of the principal. Merely, in the case of legal representation, it is considered to be different because the right of representation is granted under the law. All procuration system should not deviate from this original and characteristic. It is called an abuse of the right of representation when a representative works for himself or the third person, not for the principal who entrusts the right of representation. A number of theories exist for the case that the representative's action which corresponds to this happens. On the other hand, it causes another problem if procuration system, which is administered within a certain system, is able to fail to speak for the principal's opinion and profit. Procuration system is not always such in charter procedure, but it is considered somewhat meaningful because there exists a very unique phase, which is hardly found in general administration of procuration system. Charter procedure is commonly the most complicated among the administrative procedures, so the procuration system upon it seems to have a very peculiar characteristic. Other than the basic point that procuration system is managed for the principal himself, there might be various purposes such as stabilization of foreign relationship, effective management of related procedures, and etc. On charter procedure, procuration procedure seems to excessively emphasize the effectiveness of administrative procedure, among those several purposes. It is seen from the considerable amount of contents managed in charter procedure, other than the same points with civil law and the Civil Proceedings Act.Especially, about the management of comprehensive mandate system and appointment of sub-agent, the system is thought to be working for the comfort of representative more than for the effectiveness of procedure.Also, not a few of the contents, which regulate the unique produration system about charter procedure, are managed only with the basis related to the enforcement regulation format. Although it does not mean that these respect aught to be prescribed under the law, it needs a change, considering the fact that the recent tendency of legislation is trying to arrange legal basis as much as possible. Also, a problem of interpretation occurred while trying to include excessively complicated procedural term as a regulation.Though this originates in the complexity that the charter procedure carries, it is also a problem of legislation technology. Due to this kind of vagueness on regulations, the guidelines, which are only internal manuals, are sometimes understood as a bible. It needs to be stipulated more clearly.A national recognition of charter procedure is that it is difficult and complicated. Of course it is to create a new right by a certain procedure; therefore, it might be more complicated than other administrative procedures. However, it needs to be considered that the complexity originates from the systematic defect under management. About the charter procedure, procuration system is administered uniquely, and at some point, it needs to grope for more constructive plan for people. Further details are to be examined and learned, but some issues can be discussed as indications. First, it needs an impro

목차

Ⅰ. 논의의 제기

Ⅱ. 특허절차에 있어서 대리제도의 운영

Ⅲ. 특허절차에서의 대리제도 관련 주요 논점

Ⅳ. 결 론

참고문헌

Abstract

키워드

특허절차 대리제도 포괄위임제도 복대리 선임신고서 Patent Procedure Procuration System Comprehensive Mandate System Sub-Agent Assignment Report