하도급법상 기술탈취규제와 향후 과제

This treatise is devoted to the elucidation of the concept of “technical data,” which constitutes the object of protection under the regulatory framework governing the misappropriation of technology enshrined within the Fair Transactions in Subcontracting Act(the “FTSA”). It further endeavours to expose the intrinsic limitations of Article 12-3 and, in consequence, to propose salutary measures for its refinement. Above all, it must be observed that the regulatory structures imposed under the FTSA correspond, in substantial measure, to the pre-existing prohibition of the abuse of superior bargaining position contemplated under the Monopoly Regulation and Fair Trade Act(MRFTA); in particular, the prohibition of technological misappropriation stands in parallel to the proscription of acts of unlawful appropriation of know-how, which are deemed unfair trade practices. Yet, notwithstanding this substantial congruence, the legislature, in its considered judgment, adjudged it expedient to enact a distinct statutory edifice in order to address the peculiar dynamics and asymmetries inherent in subcontracting relationships. Be that as it may, the passage of more than a decade since the promulgation of this provision, accompanied by sundry legislative amendments, has failed to allay the abiding apprehension among subcontractors that technological misappropriation persists as the gravest menace to their interests. This enduring state of affairs has inevitably cast doubt upon the practical efficacy of the regulatory regime. There exist, to be sure, a multitude of causes that might be adduced in explanation; yet, in the final analysis, it appears that the conceptual ambiguity surrounding the notion of “technical data” as designated for protection under FTSA, coupled with the marked insufficiency of mechanisms apt to enhance the practical efficacy of the pertinent provisions, have contributed in no small measure to the prevailing state of affairs. As this treatise has endeavoured to elucidate, technical data qualifying for protection under the FTSA ought properly to be construed as information or materials satisfying the requirements of managerial secrecy, economic utility, and independence, whilst notably dispensing with the criterion of non-publicity that other statutes concerning the protection of technology customarily impose. Indeed, even information that might, at first blush, be characterised as no more than an idea is nonetheless susceptible to protection as technical data, provided that it meets the aforementioned three conditions. It bears recalling that, from the very inception of the FTSA, there has been unremitting controversy as to whether managerial information properly falls within the protective ambit of technical data; however, such debate was brought, in some measure, to a close by the legislative amendment effected in January 2018, which inserted Article 18(2), newly proscribing the unjust demand for managerial information (subparagraph 3). In order to render the regulatory structures pertaining to the proscription of technological misappropriation under the FTSA more efficacious, it is incumbent upon the legislature to envisage measures that transcend the mere penal sanctioning of principal contractors. Rather, these measures ought to be directed towards forestalling harm to subcontractors ab initio, arresting the perpetuation of such injurious conduct, and securing compensation commensurate not only in pecuniary terms but also in the satisfaction of restorative justice. To this end, it is imperative to institute a statutory right enabling aggrieved subcontractors to seek injunctive relief, thereby empowering them to demand the cessation of acts of technological misappropriation. Moreover, in respect of punitive damages, it would be both expedient and consonant with the underlying legislative purpose to prescribe a minimum threshold, thus ensuring that, in all proceedings of this nature, the judiciary is precluded from rendering judgments that amount to nothing more than the perfunctory award of compensatory damages, the consequence of an unduly circumspect interpretative approach. In fine, the introduction of an enforceable right to prohibitory injunction and the stipulation of a lower bound for punitive damages would together constitute the most felicitous and unambiguous means by which the objectives of the regulatory framework governing technological misappropriation under the Act may be realised in their fullest measure, without circumlocution or compromise. In particular, it is to be observed that acts of technological misappropriation under the FTSA are in substance, tantamount to acts of misappropriation of technology which are proscribed as unfair trade practices under the MRTFA. Yet, while the MRFTA accords to aggrieved parties a right to seek injunctive relief, no such right of prohibition is afforded to the subcontractor should recourse be had exclusively to the FTSA. This omission constitutes a cardinal structural deficiency, one that stands in stark contradiction to the professed legislative objective of the FTSA, namely the provision of more robust and comprehensive protection for subcontractors. Accordingly, it is incumbent upon the legislature to institute within the FTSA a mechanism equivalent to the right of prohibitory injunction as contemplated under the MRFTA. Furthermore, it would be both logical and salutary to incorporate into the FTSA those remedial measures which are recognised across other statutes devoted to the protection of proprietary technologies - such as the Unfair Competition Prevention and Trade Secret Protection Act (the “Unfair Competition Prevention Act”), the Patent Act, and the Trademark Act - particularly the entitlement to claim the destruction of infringing articles or the removal of facilities employed in the commission of the infringement, thereby furnishing the means to extirpate the unlawful state of affairs in its entirety. While it is not inconceivable that the Fair Trade Commission might, by way of affirmative or prohibitive orders, secure similar outcomes, it is nevertheless proper to reserve to the injured subcontractor a distinct avenue of private redress, such that the administrative sanctions and private enforcement measures may operate in tandem, each reinforcing the efficacy of the other. In so doing, one may hope to eradicate the pernicious cycle whereby subcontractors, constrained by temporal or economic exigencies, are driven to relinquish their rights in despair. Moreover, it must be observed that the purpose of punitive damages does not reside solely in the realms of retribution and deterrence; rather, it encompasses the realisation of the law itself and the provision of satisfactory redress to the aggrieved subcontractor. Yet, under the prevailing statutory framework, only an upper limit has been prescribed, thereby engendering the apprehension that, in the exercise of judicial discretion, the punitive damages regime might degenerate into no more than compensatory relief. This risk is rendered all the more palpable in circumstances where the harm occasioned by the misappropriation of technology consists predominantly in intangible losses. Should punitive damages be confined to mere compensatory measures in respect of such misappropriation, it is highly probable that the economic incentives accruing to the principal contractor - namely, the shortening of development timelines, the curtailment of research and development expenditure, and the acquisition of first-mover advantage - would be perceived, notwithstanding the imposition of supplementary sanctions such as administrative fines, as costs eminently tolerable even upon detection. Such a state of affairs harbours the grave risk of undermining the very raison d’être of punitive damages and, by extension, of rendering the regulatory apparatus against technological misappropriation altogether nugatory. In order that the legislative purpose of the punitive damages system be fulfilled in its entirety, it is imperative, above all, to prescribe not merely an upper threshold but also a lower bound - namely, a statutory minimum multiplier of damages. Furthermore, the extant ceiling of fivefold damages is manifestly inadequate to encompass the enormous intangible losses and prospective gains liable to arise from ever more sophisticated acts of technological misappropriation. Accordingly, it is equally necessary to contemplate an upward revision of this upper limit. The articulation of a statutory minimum together with the elevation of the maximum would serve to (i) reinforce the deterrent function of punitive damages, (ii) assure subcontractors of the attainment of satisfactory redress, and (iii) enlarge the ambit of judicial discretion. In so doing, it would preclude the paradox whereby the economic benefits of technological misappropriation exceed the costs of sanction, and would furnish a means by which the objectives of the regulatory regime under the FTSA might be realised in practical and substantive measure.