영업비밀 열람과 보호 - 공정거래위원회 심의절차와 그 처분취소소송절차에서의 ‘외부 대리인 한정 열람’을 중심으로

This paper reviews the newly adopted “limited disclosure” of trade secrets by way of “external eyes only(EEO)” in the Fair Trade Commission(“FTC”) Proceedings and further studies whether the EEO disclosure may also adopted to the judicial review procedure to the FTC’s decisions. The limited disclosure of the FTC proceedings, referring to the Data Room Procedure of the European Commission, allows the disclosure of trade secrets only to a party’s external counsels inside the data room. This EEO disclosure satisfies both the protection of data holders’ trade secrets and the party’s right to defense while saving the efforts and costs of the party and the FTC for the disclosure. Although the EEO disclosure is possible in the FTC proceedings, however, there exists no such EEO disclosure in the judicial review proceedings on the FTC’s disposition, which limits the party’s access to trade secrets that are essential for the party’s defense. The whole amendment to the Monopoly and Fair Trade Act(“MFTA”) adopted the order to produce materials, the EEO disclosure of trade secrets and the order to maintain confidentiality in the legal proceedings on damages claims caused by the infringement of the MFTA. Similar methods should be implemented to the administrative appeals suit to the FTC’s decisions. Furthermore, considering the difficulties of evidence gathering in the Korean legal proceedings, the above means for the disclosure of trade secrets should be extended to general civil and administrative lawsuits.