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산업스파이의 신종유형과 형사정책적 대응방안The new types of economic espionage and its criminal justice countermeasures

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The new types of economic espionage and its criminal justice countermeasures
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산업스파이; 산업기술의 보호; 영업비밀; 국가안보; 사이버스파이; 컴퓨터해킹; industrial espionage; protection of industrial technologies; trade secret; national security; cyber espionage; computer hacking; industrial espionage; protection of industrial technologies; trade secret; national security; cyber espionage; computer hacking
형사정책, v.22, no.2, pp.75 - 102
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In recent decades, the offences related to economic espionage to export the industrial technologies have been consistently increased with the importance of industrial technologies. In Korea, the "Industrial Technology Drain Prevention Act" (hereafter the ITDPA) has been enacted and the "National Industrial Security Center" under National Intelligence Service has been administered to prevent technology drain to foreign countries, to strengthen the competitiveness of korean industries, and to contribute to national security and development of the national economy. However, the existing legal system does not provide enough appropriate criminal protection against economic espionage. Here, we presented applicative weakness of ITDPA and examined legal and theoretical plans for dealing with this situation in three ways. First, regarding legal exportation of enterprises` industrial technologies through trade or mergers and acquisition (M&A), this study suggested to prohibit technology drain through the revision of Article 11 of ITDPA like a pending legislative bill in the National Assembly. That is, any enterprise or company that intends to export the national core technology (developed with national financial support) through M&A or joint venture with foreign companies should obtain approval of Knowledge and Economy Minister in advance, which is at least legal control system in screening hostile M&A attempting to technology drain only. Thus, this method will effectively prevent the exportation of national core technology and achieve the goal of legislation of ITDPA. Second, this study considered few normative difficulties in legal sanction for entering information communication networks without notice or for exportation and violation of enterprises` industrial technologies, although there is no overt penalty rule in ITDPA for recent cyber spying on industrial secret information like hacking. Article 14 of ITDPA prevent technology drain and violation, and any person that commits an offence falling under Article 14 should be punished under Article 36. In particular, an act of violation of industrial technology described by "other dishonest means" in item one of Article 14 could include cyber violation. However, the most effective and practical way to prepare for cyber spying attacks like hacking industrial secret information is to improve defense skills with the development of new defense technologies, which will be expected like hacking defense program. Third, the existing legal methods like ITDPA or Unfair Competition Prevention Law could not effectively prevent from breaching confidentiality by international industrial espionage that are perpetrated with support of foreign governments and their intelligence services. So, diplomatic steps or international laws or treaties will be helpful to settle this types of international industrial espionage. At present, Article 39 of TRIP (security of undisclosed information) is the only way to prevent from these events. The aggressive industrial espionage with government support is contrary to international law as violation on the sovereignty and on non-aggression of foreign territory. Thus, each country must make an international agreement on preventing aggressive industrial espionage so that they could protect intellectual property rights or industrial technology like trade secret. In addition, each country must consider revising extradition treaty to extradite non-state individuals for international industrial espionage. An intensive review of a topic on extraterritorial application of ITDPA is a prerequisite to effectively cope with acts of breaching confidentiality by international industrial espionage.
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