WTO TRIPS 협정상 비위반제소의 적용에 대한 검토
사회과학 > 법학
정명현 ( Myung Hyun Chung )
안암법학 2013년, 제42권 247~278페이지(총32페이지)
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    Agreement on Trade Related aspects of Intellectual Property Rights TRIPS) has been adopted as an Annex to the WTO Agreement in 1994, to establish the minimum standard on the level of intellectual property rights protection, to introduce provisions related to domestic procedures and remedy for the enforcement of intellectual property rights, and to include applicable regulations of dispute settlement mechanism where a Member violates TRIPS obligations. Article 64.3 of the TRIPS Agreement required the Council to examine the scope and modalities for complaints of the types provided for under Article XXIII:1(b) and (c) of GATT 1994 made pursuant to the TRIPS Agreement (so-called "non-violation and situation complaints") and make recommendations to the General Council. In 2001, Doha Ministerial Conference addressed the issue in its Decision on Implementation-Related Issues and Concerns that the TRIPS Council is directed to continue its examination of the scope and modalities for complaints of the types provided for under subparagraphs 1(b) and 1(c) of Article XXIII of GATT 1994 and make recommendations to the Fifth Session of the Ministerial Conference, and Members will not initiate such complaints under the TRIPS Agreement. Members subsequently extended the moratorium at the 2005 Hong Kong Ministerial Conference, at the 2009 Geneva Ministerial Conference, and most recently at the 2011 Geneva Ministerial Conference. The view has been expressed that non-violation nullification and impairment (the "nonviolation remedy") has an exceptional character. The Panel in Japan - Film considered that the non-violation remedy should be approached with caution and should remain an exceptional remedy. The view has been expressed that non-violation complaints could only succeed under the TRIPS Agreement in a very limited number of cases. It has been argued that neither the existence of safeguards nor the limited number of cases is relevant to the question whether non-violation complaints should be admissible in the TRIPS context and, if so, on what conditions and within what limits. It has been suggested that the exceptional character of the remedy could have a bearing on the scope of non-violation complaints entertained under the TRIPS Agreement. The issue of the purpose of the non-violation remedy and whether it is necessary or desirable in the TRIPS context has been discussed. Much of the substantive discussion of this item concerned the essential elements of a nonviolation claim. Certain issues of procedure and remedy have also been raised. Paragraph 1(b) of Article XXIII of GATT 1994 refers to the nullification or impairment of a benefit accruing to a Member directly or indirectly under an agreement as a result of the application by another Member of any measure, whether or not it conflicts with the provisions of this Agreement. Article 26.1 of the DSU requires the complaining party in such cases to present a detailed justification in support of its complaint and that, to remedy a case of non-violation, there is no obligation to withdraw the measure. Article XXIII:1(b) of the GATT 1994 provides that a complaint under that provision must concern the application by another Member of any measure, whether or not it conflicts with the provisions of this Agreement. The question of what type of measures could give rise to a non-violation complaint in the TRIPS area has been also discussed. Article 26.1(a) of the DSU stipulates that in non-violation cases the burden of proof falls on the complaining party and that the complaining party has to submit a detailed justification substantiating the case. DSU also provides that where there is a finding of non-violation nullification and impairment there is no obligation to withdraw the measure. All that can be recommended to remedy non-violation nullification and impairment is an adjustment in the balance of interest. In this regard DSU stated that compensation may be part of a mutually satisfactory adjustment. With regard to action to be taken by the Council in this matter the following proposals have been made: there should be no weakening of the rights or obligations of Members by nonviolation complaints under the TRIPS Agreement, the development perspective needed to be taken into consideration, the principal aim of the inclusion or introduction of this sort of provision was not to sanction WTO Members but to give predictability in order to prevent Members from nullifying or impairing the interests of other Members, the scope of the non-violation remedy should be carefully and narrowly defined, and the application of nonviolation complaints should not undermine sovereign rights to legislate or regulate for various valid legal, economic and development reasons; should not change the balance of the TRIPS Agreement, nor should it result in new responsibilities that had not been negotiated, and should not result in impediments towards the use of legitimate measures under the TRIPS Agreement.
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