기술 영업비밀 해외유출 방지 대책에 관한 연구 - 양형기준 개선을 중심으로 -

Abstract

The crime of technology leakage is a serious offense that not only causes damage to individual companies but also shakes the foundation of the competitiveness of the relevant industry and nation. Despite this, the actual sentences pronounced in cases of overseas technology leakage are extremely low in South Korea, so there is a need to establish sentencing guidelines that match the actual damage and the nature of the crime. In criminal cases of technology leakage, it is imperative to calculate the profits gained and the damages incurred due to the leakage in order to set an appropriate sentence. Trade secrets, due to their confidential nature, make it considerably difficult to calculate the economic profiot of the infringer or the loss of the victim. There is no clear method established for determining the amount of profit that the infringer could usually gain. While the Supreme Court of Korea has provided guidelines for calculating the amount of trade secret infringement, proving the amount of damages in reality is not easy, and there are hardly any judgments that specifically calculate the economic loss of the victim and adjust the sentencing accordingly. The sentencing guidelines of the Sentencing Commission of South Korea consider both the victim's loss and the defendant's profit as factors for sentencing. The profit of the infringing company can be regarded in calculating the value of the technology acquired by the infringing company. The more difficult and expensive it is to develop a certain technology, the higher its value is considered. Therefore, it is suggested that "the cost incurred to develop the leaked or stolen technology" should be added as a weighted factor in the sentencing guidelines. In the United States, the 2016 Defend Trade Secrets Act (DTSA) revised the Economic Espionage Act, leading to federal measures against trade secret leakage, and expanded the legal criteria for trade secrets protected from theft and wrongful use. Especially, the amendments include consideration of the expenses for research and design and other costs of reproducing the trade secret when calculating fines. The U.S. Sentencing Commission sets the levels of sentencing guidelines based on the amount of damages in crimes related to technology leakage. If South Korea adopts a system similar to the United States, where the levels of damages or profits are divided into tiers and sentencing is determined accordingly, it could alleviate the prosecutors’ burden in criminal trials to prove the exact amount of damages or profits for sentencing consideration.