Since we are living in a dangerous society, we yield many parts of life under the rules of criminal law. As we pursue more safety in this dangerous society, many parts of the society will be put under the influence of criminal law. This study is aimed to review the laws to regulate the crimes agains...
Since we are living in a dangerous society, we yield many parts of life under the rules of criminal law. As we pursue more safety in this dangerous society, many parts of the society will be put under the influence of criminal law. This study is aimed to review the laws to regulate the crimes against the industrial security that have been newly discussed in our society that is pursuing safety. Not long ago, the crimes against the security of industries were regarded as the crimes only related to the companies that have specific technologies or are very large. However, they have been gradually extended to the general industrial field. Under the situation, the Unfair Competition Prevention and Trade Secret Protection Act and the Act on Prevention of Divulgence and Protection of Industrial Technology have been enacted, and the Act on Prevention of Divulgence and Protection of Industrial Technology has extended the range of protection to national safety rather than just business secrets. Although the two acts have been enacted and applied to the practical cases, there are no normative discussions and empirical analyses closely related to the criminal regulations of the laws.
This study is aimed to analyze the Unfair Competition Prevention and Trade Secret Protection Act and the Act on Prevention of Divulgence and Protection of Industrial Technology that criminally regulate the crimes against the security of industries from the perspectives of criminal law and interpret the laws in the aspects of sociology of law. To that end, this study had the following discussions: First, it reviewed the definition of industrial security and the Unfair Competition Prevention and Trade Secret Protection Act that regulate the crimes against the industrial security. Second, it reviewed the philosophical backgrounds discussing the legitimacy of protection of industrial security. Third, it suggested the cases that applied the Act on Prevention of Divulgence and Protection of Industrial Technology and the Unfair Competition Prevention and Trade Secret Protection Act, focusing on the actual precedents. Fourth, it normatively analyzed the sentencing guidelines that are used in the final sentencing process by applying the acts relevant to the crimes violating the industrial security largely based on the principle of legality and the principle of double evaluation prohibition. Fifth, it helped understand the appropriateness and predictability of the sentencing guidelines of the crimes against the industrial security from the perspectives of sociology of law through the empirical and statistical analyses. Sixth, it suggested the directivity of the acts related to industrial security as independent special laws.
This study pointed out that the laws related to industrial security have been used in a way that is normatively and empirically similar to the existing criminal laws protecting the property rights although they protect the business secrets, and that they do not reflect or consider the differential characteristics of the crimes against the industrial security at all in terms of the actual application method. By analysing the sentencing guidelines, the study also pointed out that the current sentencing guidelines are significantly violating the principle of legality as well as showing the serious problem of dual evaluation. Furthermore, the statistical analysis of the sentencing guidelines showed that the external factors and type of attorney have more significantly relevant influences on sentencing the cases of industrial security rather than the law-related information, indicating that there is a wide gap between the actual predictability and goal achievement of fairness. It is expected to make efforts to reflect the attributes of the crimes against the industrial security that cannot be covered by the past criminal laws as much as possible and meet the normative demands to settle the laws related to industrial security as independent special acts. In addition, it is required to seek the solutions to have diverse liability systems, given the characteristics and standards of the systems for the crimes violating the security of industries.
Since we are living in a dangerous society, we yield many parts of life under the rules of criminal law. As we pursue more safety in this dangerous society, many parts of the society will be put under the influence of criminal law. This study is aimed to review the laws to regulate the crimes against the industrial security that have been newly discussed in our society that is pursuing safety. Not long ago, the crimes against the security of industries were regarded as the crimes only related to the companies that have specific technologies or are very large. However, they have been gradually extended to the general industrial field. Under the situation, the Unfair Competition Prevention and Trade Secret Protection Act and the Act on Prevention of Divulgence and Protection of Industrial Technology have been enacted, and the Act on Prevention of Divulgence and Protection of Industrial Technology has extended the range of protection to national safety rather than just business secrets. Although the two acts have been enacted and applied to the practical cases, there are no normative discussions and empirical analyses closely related to the criminal regulations of the laws.
This study is aimed to analyze the Unfair Competition Prevention and Trade Secret Protection Act and the Act on Prevention of Divulgence and Protection of Industrial Technology that criminally regulate the crimes against the security of industries from the perspectives of criminal law and interpret the laws in the aspects of sociology of law. To that end, this study had the following discussions: First, it reviewed the definition of industrial security and the Unfair Competition Prevention and Trade Secret Protection Act that regulate the crimes against the industrial security. Second, it reviewed the philosophical backgrounds discussing the legitimacy of protection of industrial security. Third, it suggested the cases that applied the Act on Prevention of Divulgence and Protection of Industrial Technology and the Unfair Competition Prevention and Trade Secret Protection Act, focusing on the actual precedents. Fourth, it normatively analyzed the sentencing guidelines that are used in the final sentencing process by applying the acts relevant to the crimes violating the industrial security largely based on the principle of legality and the principle of double evaluation prohibition. Fifth, it helped understand the appropriateness and predictability of the sentencing guidelines of the crimes against the industrial security from the perspectives of sociology of law through the empirical and statistical analyses. Sixth, it suggested the directivity of the acts related to industrial security as independent special laws.
This study pointed out that the laws related to industrial security have been used in a way that is normatively and empirically similar to the existing criminal laws protecting the property rights although they protect the business secrets, and that they do not reflect or consider the differential characteristics of the crimes against the industrial security at all in terms of the actual application method. By analysing the sentencing guidelines, the study also pointed out that the current sentencing guidelines are significantly violating the principle of legality as well as showing the serious problem of dual evaluation. Furthermore, the statistical analysis of the sentencing guidelines showed that the external factors and type of attorney have more significantly relevant influences on sentencing the cases of industrial security rather than the law-related information, indicating that there is a wide gap between the actual predictability and goal achievement of fairness. It is expected to make efforts to reflect the attributes of the crimes against the industrial security that cannot be covered by the past criminal laws as much as possible and meet the normative demands to settle the laws related to industrial security as independent special acts. In addition, it is required to seek the solutions to have diverse liability systems, given the characteristics and standards of the systems for the crimes violating the security of industries.
주제어
#산업보안 양형 양형기준 산업기술보호법 영업비밀침해 부정경쟁행위 산업기술유출 부정경쟁방지법
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