상생협력법과 하도급법의 기술탈취 행위에 대한 중복규제의 문제점과 개선방안

In Korean society, small and medium-sized enterprises (SMEs) are often in a disadvantageous position in business transactions compared to large contractors, which leads to that their intangible “technical data” are misappropriated during the transaction process occur frequently. The Subcontracting Act operates a regulatory system based on Article 12-2 to control such acts of technical data misappropriation, aiming to address unfair trade practices that arise in these vertical business relationships. Meanwhile, as part of policy efforts to protect SMEs, the Mutual Cooperation Act also operates a regulatory system under Article 25(1) 12 and (2) that is almost identical or similar to that of the Subcontracting Act in regulating technology misappropriation. Therefore, overlapping situations may arise—for example, a dispute resolution procedure under the Mutual Cooperation Act could proceed concerning a case, which is being still investigated by the Fair Trade Commission. For these reasons, it is reasonable to restrict maintaining such duplicative administrative regulations, as they undermine both practical effectiveness and the stability of legal judgments. However, Article 26 of the Mutual Cooperation Act serves as a general provision intended to avoid overlap between the Fair Trade Commission’s regulation for technology misappropriation under the Subcontracting Act. Furthermore, Article 34 of the Subcontracting Act functions as a provision that excludes conflicting regulations under the Mutual Cooperation Act. Therefore, even though the sections of the Mutual Cooperation Act do not explicitly restrict corrective measures by the Ministry of SMEs in cases of violations of the Subcontracting Act, it is reasonable to interpret that all forcible measures inherently imposing disadvantages on the regulated parties should be subject to the Subcontracting Act’s precedence. Accordingly, it is appropriate to interpret that the measures under the Mutual Cooperation Act possessing a strong dispositional character—such as the corrective recommendations and administrative investigations under Article 27(1), the corrective recommendations under Article 28(3), and the penalty point system under Article 28-2—do not apply to violations governed by the Subcontracting Act.