부정경쟁방지법상 영업비밀 침해죄의 구성요건에 관한 연구

Abstract

Since 1991, the trade secret infringement crime under the Unfair Competition Prevention Act has evolved by expanding the elements of the offense. However, certain areas have been found to be inconsistent with criminal law theory, necessitating further discussion. This article focuses on clarifying and refining the elements of trade secret infringement crimes. In the case of Unauthorized Disclosure of Trade Secrets (Article 18-1-1-b), the term “designated place” is generally understood as a physical location. However, in consideration of modern violations that occur in non-physical spaces, it is advisable to revise this term to “designated place or space.” Additionally, it remains unclear whether “leak” refers simply to removal or also includes disclosure to a third party. After review, it is more appropriate to narrowly interpret “leak” in this provision as removal from the designated place without third-party disclosure. As for the crime of Continuing Possession of Trade Secrets (Article 18-1-1-c), it is a true omission crime in which the initiation and completion of the offense coincide, making it difficult to apply the concept of attempted crime. However, due to a legislative error, the Unfair Competition Prevention Act includes this crime as subject to attempted crime, so it would be appropriate to exclude it from that category. Furthermore, shifting the point of criminalization forward raises concerns about over-criminalization, and as the basic crime is already of a preparatory nature, the current conspiracy provisions may become obsolete. Regarding the crime of Illegitimate Acquisition by Unfair Means (Article 18-1-2), I examined whether hiring an employee from a competitor constitutes illegitimate acquisition. Information retained by employees is deeply personal, so employment alone should not be considered an illegitimate means. Only when actions encouraging the leakage of trade secrets are involved should it be regarded as constituting illegitimate acquisition under this provision. Finally, concerning the current regulation that only penalizes acquisition, upon applying the principle of non-punishable subsequent conduct, it appears that acts of use or disclosure are distinct from acquisition and involve additional infringement of legal interests. Therefore, these acts should not be viewed as non-punishable subsequent conduct following acquisition. Comparison with other laws and regulations also reveals a lack of consistency, underscoring the need for legislative grounds to penalize the use or disclosure of trade secrets acquired through illicit means.