국제적 영업비밀 침해소송에서의 국내법의 일반적 역외적용 가능성 — 국제관습법의 형성원리를 통한 전망 —

Abstract

Recently, corporate trade secrets and important industrial technical information have been misappropriated internationally in many cases, such as unlawful scouts of technical expert employees by overseas competitors. However, there is a risk that the trade secret protection system cannot be properly operated due to the limitations of the expansion of a nation’s jurisdiction over overseas activities, even though related protection laws such as the trade secrets protection acts are in place. In other words, existing legal principles of the international jurisdiction and the choice of law, which have identified the territorial boundaries of individual nations as the scope of jurisdiction and jurisdiction to prescribe for the exercise of the national sovereignty, are not appropriate for a today's highly globalized and internationalized society, where international transactions have become very frequent, and it is highly likely that a competitor who wants to misappropriate trade secrets willfully from outside the border will exploit these structural defects of the principle regarding the international jurisdiction and the choice of law. Therefore, it is time to review the legal principle of the international jurisdiction expansion and the extraterritorial application of a domestic trade secrets protection act as its ultimate conclusion, and the modified principle needs to be based on a view of the future of an international society as a single economic community or at least it should be based on the reality of a close-knit society caused by globalization. This study recognized the need for changes of the legal principle in jurisdiction and jurisdiction to prescribe at the international level for the protection of trade secrets and industrial technical information, and examined whether ‘the extraterritorial application of a domestic trade secrets protection act’ could be universalized under the international order. However, this problem cannot be solved immediately just because there is a real need, but it must be in accordance with the existing legal principle of jurisdiction, and the principle on which it is based will be the current international law regarding this matter. Therefore, in a case when the treaties and customary international laws, which are considered as the two main sources of international law, are already existed regarding this matter, they were analyzed by procedural and substantial legal dimensions respectively, and the international laws were speculated from other existing regulations and legal principles in a case when they do not exist or are unclear. In addition, since customary international law is a reflection of international political order in an international society, we have predicted a realistic possibility of the extraterritorial application of a domestic trade secrets protection act from an international political perspective other than legal perspectives in order to examine the future changes in international law. To this end, we analyzed the cases of the extraterritorial application of the competition law in the past and found that three conditions must be met in order for the extraterritorial application of a domestic law to become common at the international level. In conclusion, the analysis of this study shows that the legal principles of the international jurisdiction and the choice of law that border on the territories of existing sovereign nations are being overcome, and the interpretation of the scope of the jurisdiction to prescribe for the trade secret protection and the jurisdiction of related disputes is being more flexible in a globalized society. And with this direction, it could be predicted that the global generalization of extraterritorial application of a domestic trade secret protection act could become a future customary international law for the international jurisdiction and the choice of law. This is similar to the global generalization of extraterritorial application of the competition law in the past, and it was also confirmed that this interpretation does not contradict the current relevant domestic and international laws for the trade secret protection.