산업기술유출 사건에서 산업기술의 개념과 형사책임에 관한 소고-2011헌바39 결정을 중심으로-

With the evolution of technology, the society is witnessing increasing number of cases where domestic industrial technology is being leaked overseas. Such technology leak causes severe damage to the domestic industry, leading to an obstacle in the economic development of the country. Something important such as the protection of industrial technology is for sure facing tremendous limits if security is only left to a self regulated measure by individual businesses. Therefore, today it is essential for the government to intervene for industrial technology protection and a systematic legislation would be necessary in contributing for the improvement of the country’s competitive edge. Among the legislation regarding industrial technology protection, the definition of ‘industrial technology’ as described in the Industrial Technology Outflow Prevention and Protection Act has been rendered unconstitutional by the Constitutional Court of Korea. Such judgment was a confirmation that the penalty clause in accordance to the definition of industrial technology which is the very fundamental concept in the Industrial Technology Outflow Prevention and Protection Act is unconstitutional. The judgment rendered by the Constitution Court is a rule rendered regarding Act 36 Phrase 2 and Act 14 Phrase 1 of the pre-revised version of the Industrial Technology Outflow Prevention and Protection Law. The Constitution Court ruled that the provisions of the law are too abstract and indefinite where the concept could change easily due to the broad relativity of the valuation of the phrases. In other words, the current definition can’t give a definite boundary clear enough for the word ‘industrial technology’ to become a component of a criminal penalty. This means the boundary to define industrial technology becomes arbitrary which comes in direct violation with the principle of legality, the nulla poena sine lege. In accordance to such judgment, the clause lost effect, and it became impossible to bring criminal penalty against those accused of selling out domestic industrial technology. Therefore, this paper will study the concept of industrial technology and the related criminal penalty measures by discussing several cases that have been declared unconstitutional. It is in hopes that this paper could ring an alert to the importance of technology outflow.