영업비밀보호법제의 역외적용

초록

In Korea, the recent illegal outflow or export of high-the domestic technology has adversely affected the international competitiveness of not only individual companies, but also related domestic industries. Therefore, interest in the extraterritorial application of the laws to protect trade secrets is increasing. From a public law perspective, the laws to protect trade secrets allow the extraterritorial application of the Korean laws to determine whether they cover not only the acts of targeting trade secrets themselves, but also the acts related to infringing goods. A good illustration is a border measure such as an exclusion order. In addition, there will be cases where the extraterritorial application of the governing law is problematic. In short, in order to prevent the weakening of the competitiveness of Korean companies and Korea due to the illegal outflow or export of trade secrets, it is necessary to deal in depth with the extraterritorial application of the Korean laws to protect trade secrets from the perspective of public law and private international law. In terms of registered intellectual property rights, the rights are absolutely protected at least in the country where its registration was made whereas, in the case of trade secrets, trade secret protection legislation of each country may be ineffective when the geographical scope of jurisdiction to adjudicate or prescribe is abused. However, it is important to note that advanced countries that maintain a higher level of intellectual property protection than the level required by the TRIPs Agreement may violate the international agreement if their laws to protect trade secrets are applied outside the countries. Therefore, to improve the laws of the countries where frequent violations of Korean companies’ trade secrets have occurred, Korea needs to enter into bilateral and/or multilateral agreements with them. If the laws to protect trade secrets in the developing or underdeveloped countries around Korea are improved, it can lower the chances to violate TRIPs agreement even if Korean laws to protect trade secrets are applied outside Korea. In addition, Korea needs to consider expanding its jurisdiction to prescribe in terms of, e.g., border measures and criminal penalties from a public law perspective, and, in private law areas, it is necessary to actively consider whether to introduce provisions related to extraterritorial application of jurisdiction to adjudicate and substantive law. In terms of the latter, the laws to protect trade secrets need to cover not only the act of targeting the trade secrets themselves, but also the articles made by the misappropriation of trade secrets.

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