營業秘密侵害에 대한 刑事處罰의 可能性과 改善方案 : Possibility of Penal Sanctions and Suggestion on Reform = Misappropriation of Trade Secrets

다국어 초록 (Multilingual Abstract)

In modern society the importance of science and technology is enormously growing. Korean companies have developed high technology very rapidly in fields of memory semiconductors, computer, automobile, home appliances. This means that Korean companies are now not out of range of the global economic espionage. For example, in 1998 a ghost company founded by some former researchers took illegaly industrial secrets of Samsung and LG, and sold them to a Taiwanese company. In the aftermath of this case, the legislature has revised the Unfair Competition Prevention and Business Secret Protection Act, (Unfair Competition Act) and broadened the range of criminal responsibility in case of divulgence of trade secrets on techniques. The Act is effective since July 1, 1999.
Nevertheless it is not to oversee that the revised Act does not provide enough criminal protection against economic espionage. In this paper I look into protection systems of other major countries, such as USA, Germany, Japan, Swiss, Austria, Italy. Through this comparative study we can found out what kind of problems the Korean protection system has and how to remedy them.
The Unfair Competition Act penalizes some acts of misappropriation of trade secrets on techniques. Any officer or employee of an enterprise who, without any justifiable reason, uses in a foreign country any business secrets on techniques useful to the enterprise or, with knowledge that the secrets will be used in a foreign country, divulges them to a third party shall be punished by imprisonment for not more than seven years or by a fine not exceeding one hundred million won(Unfair Competition Act §18 Ⅰ 1). As same shall be punished any ex-officer or employee of an enterprise who, with intent to gain any unfair profit or to inflict any loss on the enterprise, uses in a foreign country any business secrets on techniques useful to such enterprise or, with knowledge that the secrets will be used in a foreign country, divulges them to a third party, in violation of the duties of observance of secrecy under a contract or any similar relation(Unfair Competition Act §18 Ⅰ 2). These provisions are intending to prevent disclosure of trade secrets in favor of foreign countries.
Any officer or employee of an enterprise who divulges any business secrets on techniques useful to the enterprise to a third party, without any justifiable reasons shall be punished by imprisonment for not more than five years or by a fine not exceeding fifty million won(Unfair Competition Act §18 Ⅱ 1). Any ex-officer or employee of an enterprise who divulges any business secrets on techniques useful to such enterprise to a third party, with intent to gain any unfair profit or to inflict any loss on the enterprise, in violation of the duties of observance of secrecy under a contract or any similar relation shall be punished also by imprisonment not more than five years or by a fine not exceeding fifty million won(Unfair Competition Act §18 Ⅱ 2).
The punishment of imprisonment and fine under Art. 18 Ⅰ and Ⅱ shall be concurrently imposed(§18 Ⅳ). A public action against the offense referred to in Art. 18 paragraphs (1) and (2) shall be instituted only on the aggrieved person's complaint: Provided, That the same shall not apply where it is deemed necessary for national security or material public interests(§18 Ⅴ). Other than the Unfair Competition Act some provisions of criminal code, such as breach of trust(Art. 355 Ⅱ), theft, etc can apply to the theft of trade secrets, but with limitations.
In application of the Unfair Competition Act some problems can be pointed out: 1) the Act does not criminalize outside-actor, in that only officers or employees, whether present or former, fall under the criminal provisions. The application range of the criminal provisions should be widened. 2) The Act focus mainly on ‘divulge’ or disclose of trade secrets on techniques, and very limitedly on ‘use’ of trade secrets. We must say that a professional industrial spy could avoid the punishment by the Act, let aside other acts. So the Act should be revised so as to encompass the actions like ‘obtain, acquire, take away, steal, copy, photocopy’ of trade secrets. 3) Attempt, or conspiracy should be put under punishment in order to provide an enough protection of the trade secrets. 4) Some procedural measures are necessary to prevent disclosure of trade secrets in criminal trials.

목차 (Table of Contents)

• Ⅰ. 들어가는 글
• Ⅱ. 영업비밀의 의의
• Ⅲ. 부정경쟁방지및영업비밀보호에 관한 법률상 영업비밀침해죄
• Ⅳ. 형법, 기타 법률에 의한 내부인의 처벌
• Ⅴ. 특수한 지위의 외부인의 영업비밀침해에 대한 처벌
• Ⅵ. 단순외부인의 영업비밀침해에 대한 처벌
• Ⅶ. 공범의 처벌
• Ⅷ. 산업스파이 처벌의 문제점과 개선방안
• Ⅸ. 맺음말
• Abstract