산업기밀유출범죄와 양형의 실효적 개선방안

Abstract

In recently, not only Industrial Technology but also Core Technologies with high value added have been consistently leaked on abroad company. Its loss and damage has effected on a nation’s Stability and Security and Economic Problems immeasurably. With these reasons, advanced countries like US and so on, Korea have been administrating constantly the security of Industrial Technology for National Competitiveness and have been taking a responsible actions about Industrial Espionage(Economic Espionage) aggressively. In Korea, to prevent Industrial Technology from leaking from the companies, to protect the stabilities of Industrial Technology, the “Unfair Competition Prevention and Trade Secret Protection Act”(hereinafter UCPTSPA), “Industrial Technology Drain Prevention Act”(hereinafter ITDPA) have been enacted. All kinds of economic espionage could be controlled under the Former and the Latter. The UCPTSPA defines the leakage of trade secret as unfair competition and regulate the industrial espionage, protect the trade secret and legal compensation, keep the fair trade competition finally. On the other hand, the ITDPA widen, Industrial Technology, the object of protection, from Trade Secret, which is intensified only in the UCPTSPA and the range of the protection of civil’s Technology, Information, to industrial technology, national industrial secret. With understanding the above problems seriously, in which there are a lot of loss, this Study is supposed to define the diverse types of Industrial Espionage and to analyse the reasonable Assessment and to suggest the effective improvement of Assessment. This Study is to consider an effective improvement of assessment to do justice the Industrial Technology Leakage in industries and to protect the Industrial Technology. First, as an Effective Improvement of Assessment on the Industrial Espionage, the judgement standard of properties values need to be relieved. In criminal justice systems, the value of loss and the amount of loss is hardly to be concrete and clear. The Court would not accept or acknowledge the proof, testimony of Prosecutor’s Office. Neither would accept or acknowledge the Victim’s. In these reasons, it is not possible to fine. If it is possible to sentence the prison, it seems to sentence light penalty. Also, the Supreme Court tends to reach a verdict that how to prove the amount and value of loss and how to prove the profits is completely severe. In cases, Supreme Court sentences (Occupational) Breach of Trust(§355, §356) mostly. But if the loss by leakage of Industrial Technology is growing and making the economic society in confusion, if the Court sentences (Occupational) Breach of Trust(§355, §356), the economic loss is huge and specific Act related in Industrial Espionage is meaningless. Second, it is needed to apply severely the stay of execution on the Industrial Espionage. In mostly, because of the difficulty of amount and value of loss, Court has a tendency to sentence a stay of execution as a paternalistic Assessment. The major role of Assessment in criminal justice is to consider the responsibility and prevention of crimes. In particularly, Assessment has an important role on a second conviction. If these conditions of paternalistic Assessment go on, any sentence by Court cannot prevent the loss of Industrial Espionage either. Third, Introduction of universal and standard Assessment on Industrial Espionage should be needed. The Assessment by Court should be strengthen to the level of advanced countries, in considering the impact of enterprise and society, in considering the prevention of crimes, fairness of administration. With an adoption of assessment of Industrial Espionage in Korea, it is expected to adopt an effective assessment.