[구멍난 법망에 핵심기술 샌다]
Strict punishment is the only way to prevent extortion
It’s been 4 years since the highest sentence was raised, but the sentence remains the same
檢 sentenced to only 4 years in prison despite 15 years sentence
Mostly home… Less than robbery and fraud
Ensure an opportunity to explain the value of technology
An agency specializing in estimating the actual amount of damage is also required.
The Suwon District Prosecutor’s Office’s Defense Business and Industrial Technology Crime Criminal Division handed over former SEMES researcher A to trial in May of last year. They are accused of leaking the manufacturing technology of ‘supercritical cleaning equipment’ to China. This is a technology for cleaning semiconductor substrates with supercritical carbon dioxide (a state in which liquid and gas cannot be distinguished). Prosecutors sought 15 years in prison for leaking the semiconductor cleaning equipment technology developed by SEMES for the first time in the world in 2018. In the first trial, the judge pointed out, “Under the plan to manufacture and sell semiconductor cleaning equipment, they systematically illegally acquired and used the technical data of the victim company, exported the cleaning equipment to a Chinese company, and transferred the technology.” . He then rebuked the company, saying, “Even if the amount of damage cannot be expressed in clear figures right now, the damage cannot be taken lightly.” This is equivalent to one-fourth of the prosecution’s sentence.
Experts point to laws and systems that do not reflect reality as the cause of the big difference between the prosecution’s sentence and the actual judgment. The Act on the Prevention of Leakage and Protection of Industrial Technology (Industrial Technology Protection Act) and the Act on the Prevention of Unfair Competition and Protection of Trade Secrets (Unfair Competition Prevention Act) were amended in 2019 to raise the statutory penalty, but the sentencing standards for infringement of trade secrets is the same for 6 years. In addition, in the process of criminal trials, only witnesses are interrogated for victims (company), and no opportunity is given to properly explain the value of technology. In addition, there is not even an advisory group to calculate the level of punishment and the value of technology to cover the level of punishment, and there are not a few opinions that legal and institutional changes must be made quickly to further tighten the ‘protection law’ of industrial technology.
According to the Supreme Prosecutor’s Office on the 23rd, in 8 of the 9 cases prosecuted for violating the Industrial Technology Protection Act and the Unfair Competition Prevention Act in 2021-2022, the court’s first trial sentences did not reach half of the prosecution’s sentence. Even if he sought 5 years in prison, the result was a sentence of 1 to 2 years in prison, lowering the level of punishment. In addition, 6 out of 9 cases were sentenced to probation. There was only one case in which the actual level of punishment was similar to the level of the sentence. Even so, the prosecution sought a one-year prison sentence, but was actually sentenced to two years of probation in August. Considering the impact of industrial technology leakage on the national economy and the damage that companies will suffer from the leakage, the prosecution requested an average imprisonment of 4 years and 6 months, but the actual level of punishment does not seem to be much lower than this.
An official from the prosecution said, “Criminals who have leaked industrial technology are avoiding answers by remaining ignorant in trials, or even destroying evidence during the investigation.” true,” he pointed out. “Leaking technology also amounts to theft after all,” he added. In other words, there are tangible and intangible differences between industrial technology leakage and theft, but there is a difference in the level of punishment for stealing and taking away something. In fact, in the case of general and special intensity, the sentencing standards reach a maximum of 6 years and 8 years. The sentencing standard for fraud is 9 years and 13 years, respectively, when the amount of damage is between 5 and 30 billion won and over 30 billion won, respectively.
A high-ranking official at the prosecution said, “In the sentencing standards for intellectual property crimes, copyright infringement that steals designs and trademarks is included along with infringement of trade secrets.” As an optical illusion, which seems to come out originally low, can appear, it is necessary to separate the act of infringing on trade secrets and discuss the sentencing standards.”
In addition, many point out that the victim (company) should be given an opportunity to explain the value of technology in the criminal trial process. Currently, the victim is only interrogating witnesses and cannot explain the value of technology or submit an opinion. However, since the degree of value of technology can determine the level of punishment in the court’s judgment process, it means that the victim must have a way to explain himself.
Jeong Chang-won, an attorney at Sejong Law Firm, said, “For victims, there is only an interrogation of witnesses, and even an opportunity to explain the value or importance of technology is not guaranteed under the Criminal Procedure Act.” Regarding this, he pointed out that he could not even submit an opinion.” Lee Jae-seung, an attorney at Law Firm Jipyong, pointed out, “It is also necessary to make practical efforts to accurately calculate the actual amount of damage by having a specialized agency or appraiser to calculate the amount of technical infringement during the trial process.” Currently, in the case of the Suwon District Prosecutor’s Office, two industrial technology investigation advisors dispatched from the Korean Intellectual Property Office are on duty, but there are no personnel or departments in charge of consulting in each district court except for the Patent Court.
On the other hand, in the aspect that civil cases other than criminal cases have not been activated for the crime of industrial technology leakage, the argument that ‘the introduction of a Korean-style discovery system is urgent’ is gradually gaining strength. Punishment is important, but in order for victims (company) to receive actual compensation, a Korean-style discovery system that can collect extensive evidence must be implemented as soon as possible.
Son Seung-woo, head of the Korea Intellectual Property Research Institute, said, “In order to reveal the circumstances of the leak or accurately calculate the amount of damage, various data possessed by the perpetrator (company) are needed, but there is no way for the victim (company) to access it.” Since the discovery system, which is mostly introduced, has not been introduced, the technology dispute lawsuit between LG Energy Solutions and SK Innovation is also ongoing in the United States.” Attorney Lee also said, “The discovery system enables a wider range of evidence disclosure (collection),” and “this can be of great help in recovering victim losses in civil cases in calculating the amount of damage or collecting evidence.”