Possession of valuable trade secrets, especially those information on industrial technology, determine the fate of an enterprise in today's information-oriented society. The number of cases regarding misappropriation or unauthorized use of industrial ...
Possession of valuable trade secrets, especially those information on industrial technology, determine the fate of an enterprise in today's information-oriented society. The number of cases regarding misappropriation or unauthorized use of industrial technology - trade secrets a company creates through expensive R&D process - is rapidly increasing, especially in high technology industries such as electronics, telecommunication, pharmacy, etc. Companies carry out unfair tactics such as disguising as customers, buying off employees, and bugging to survive fierce competitions in those industrial fields.
When trade secrets are not given thorough legal protection, not only the companies will refrain from investing in R&D, but the fair trade system will also collapse, thus greatly impeding the industrial development. This recognition on the importance and necessity of trade secret protection gained universal approval and brought about the TRIPs agreement of WTO. TRIPs protects trade secrets as a matter of preventing unfair competition and leaves the choice of specific protective measures and procedures at the discretion of its member nations. Technologically advanced countries such as the United States and Japan have intensified civil or criminal penalties under their trade secret protection statutes to safeguard high-tech industrial technology. Accordingly, Korea also has taken steps to effectively deal with infringement of trade secrets. In December 1998, the title of ‘Unfair Competition Prevention Act,' which focused on providing civil remedies against unfair competitions, was changed to ‘Unfair Competition Prevention and Trade Secret Protection Act(UCPTSPA).' In 2004, UCPTSPA was amended to considerably strengthen criminal penalties imposed upon infringement of trade secrets.
In October 2006,‘Industrial Technology Outflow Prevention and Protection Act(ITOPPA)' was enacted to prevent outflow of industrial technology for national interests, and to overcome the limitations of the present UCPTSPA. UCPTSPA only protects trade secrets of private enterprises and focuses on imposing penalties, while preventive measures are much more important in protecting cutting-edge industrial technology.
This study researched and examined treatises in and out of Korea regarding trade secret protection through criminal penalties. To make the study practical, statistical data are referred to describe exisiting trade secret outflow cases and present trade secret protection practice in Korea. Comparative study on foreign countries trade secrets protection legislations has been carried out. The Korean Supreme Court cases and lower courts cases regarding technology outflow crimes and press releases are also researched and analysed.
In specific, chapter two explores existing trade secret outflow cases and trade secret protection currently in practice in Korea. It reveals that the infringement of trade secrets, including industrial technology, mainly takes place in the industries where technology which can be instantly commercialized are present.
Chapter three looks closely at the legislative measures for trade secret protection in foreign countries. In general, the protective measures adopted are not only confined to civil remedies but also includes criminal sanctions, and trade secret protection legislation is not only found in limited number of countries and is being developed into an international and universal system. It is notable that the definitions of trade secrets and punishable types of infringement are very similar around the world.
Chapter four specifically examines criminal penalties of current trade secret protection legislation in Korea, mainly those prescribed in UCPTSPA, recently enacted ITOPPA and the Criminal Code.
Chapter five points out problems the current Korean trade secret protection statutes have and suggests possible solutions. Specifically, the problems concerning UCPTSPA discussed are as follows: practical construction of the definition of trade secrets; penalizing acquisition of trade secrets for the purpose of dissemination in foreign countries; effectiveness of aggravated fine system; making offenses not prosecutable upon a complaint; insertion of trial non-disclosure clause; offshore jurisdiction; insertion of compulsory confiscation clause. With respect to ITOPPA, the followings are discussed: definition of 'industrial technology' and the rule of clarity; conflicts between the constitutional protection of property rights and freedom of trade; regulating domestic technology outflow by M&A with foreign companies; increasing the upper limit of statutory sentence and individualization of penal provisions; penalizing unjust acquisition by person responsible for protecting secrets; effectiveness of restitution order and penalizing the noncompliance thereof; confiscation clause; overlapping of the scope of protection and criminal sanctions with other statutes.
Finally, chapter six concludes by emphasizing the importance of providing fair treatment to R&D workers in preventing trade secret outflow and calling for a shift in governmental and industrial perspective on that matter.
Trade secret protection legislation in Korea can largely be divided into Unfair Competition Prevention Act, Industrial Technology Outflow Protection Act and the Criminal Code. As discussed in the main text, the scopes of protection and criminal penalties each statute provides overlap in part. This is due to the fact that UCPTSPA provides for both civil remedies and criminal penalties against infringement of trade secrets as in the cases of Japan and Germany, while ITOPPA provides for criminal penalties against outflow of industrial technology. Therefore, this paper suggests UCPTSPA only provide for civil remedies against infringement of trade secrets and criminal penalties upon trade secret outflow be regulated by ITOPPA as in the case of the United States, where civil remedies are given under the Unified Trade Secret Protection Act and criminal penalties under the Economic Espionage Act.
Research on the definitions of ‘trade secrets' in UCPTSPA and of ‘industrial technology' in ITOPPA should be carried out continuously so as not to cause any difficulties in the interpretation and application of the statutes. On top of making improvements upon the legislative measures, the government must put all its efforts into preventing trade secret infringement by ensuring fair treatment of R&D workers and inducing companies' active investment in industrial technology security measures.