Seeking unconstitutional litigations for individuals and companies on unfair trial for ‘tech theft’
In March 2020, the Act On Prevention Of Divulgence And Protection Of Industrial Technology Countermeasure Committee filed a constitutional petition regarding Articles 9-2(non-disclosure of the information related to national core technology), 14-8(prohibition of non-purposeful use/disclosure of information containing industrial technology), and 34-10(prohibition of divulsing or stealing secrets learned in the course of his/hers duties while performing information disclosure on industrial technology). The reason for a constitutional petition is that the provisions violate the right to know, tight to life and health, freedom of expression, academic freedom, the constitutional principles of clarity, and prohibition of excesses.
In June of the previous year, the Constitutional Court made its decision. Regarding Article 9-2, the court stated that, due to the existence of exceptional disclosure reasons and procedures, “infringement of basic rights occurs only through non-disclosure decisions by state agencies, etc.” (lacking directness). For Articles 14-8 and 34-10, the court said that they could not recognize any relevance to the petitioners, considering it “illegitimate.”
The Constitutional Court’s decision is disappointing. It seems that the Constitutional Court focused on the formal logic of ‘directness’ and ‘self-relationship’, which are requirements for constitutional petitions. Exceptions to disclosure under Article 9(2)(1) and (2) can only be made if “there is no risk of adversely affecting the security of the country and the development of the national economy,” and only after hearing “the opinions of interested parties,” obtaining “the consent of the Minister of Trade, Industry and Energy and the heads of relevant ministries,” and “committee deliberation.” In other words, the court decision is just assortment matching, and cannot be seen as establishing an actual disclosure procedure. Therefore, it should be understood that, based on Article 9-2, paragraph 1, all information related to national core technology has been subjected to non-disclosure measures.
Articles 14-8 and 34-10 apply to a person who has been “Using or disclosing information including industrial technology provided through any legitimate process prescribed by Presidential Decree, such as litigation on industrial technology, for any purpose other than the purpose for which such information was provided”, and “Any person who obtains information on industrial technology in the course of performing his or her duties prescribed by Presidential Decree, such as requests for disclosing information under the Official Information Disclosure Act and litigation on industrial technology”. However, the court ruled that the “prescribed by Presidential Decree” was premised on a specific interpretation of the current Presidential Decree. As the subject provision delegated the elements of criminal punishment to subordinate legislation, the petitioners alleged violations of the principle of clarity and the principle of non-delegation. Therefore, there is a need to consider a broad interpretation of the scope of “self-relevance,” taking into account the possibility of amending the presidential decree or expanding related interpretations.
As a result of the Constitutional Court’s decision, these provisions are still in effect. All state institutions, local authorities, and public agencies can continue to use the invincible reason of “information related to national core technology” to conceal all information regarding businesses that possess “national core technology.” The determination of relevance is effectively left to those who wish to conceal the information. Furthermore, individuals who have legitimately acquired information that includes or is related to industrial technology must be willing to endure various burdens if they wish to engage in any public interest activities based on that information. The law allows for severe criminal penalties, punitive damages, and pre-emptive measures by information investigation agencies for related actions while leaving the scope of the target too ambiguous.
However, the Constitutional Court’s narrowing of the scope of application of Article 14-8, and Article 34-10, is expected to have an impact on their future application and the amendment of subordinate regulations. Particularly, about Article 34-10, it is encouraging that the Court explicitly determined that “decisions to disclose information under the Information Disclosure Act are made by reviewing the Official Information Disclosure Act Article 9 (information subject to non-disclosure), and once the information is disclosed, it can no longer be considered confidential information, so the task of requesting information disclosure for viewing information is not included in the ‘information disclosure business’.” This authoritative interpretation was not present in the content of Article 34-10, and the fact that this law could apply even to individuals who acquire information through information disclosure requests is a significant cause for concern.
These toxic provisions of the Act were crafted by the 20th National Assembly. The bill was initiated by members of the Liberty Korea Party, but it was passed unanimously by other parties, including the Democratic Party of Korea and the Justice Part, in August 2019 in the standing committee and plenary session of the National Assembly. When civil society organizations formed a task force to raise the issue, members of the Democratic Party of Korea and the Justice Party said they had no idea it was such a bill. In February 2020, 15 members of parliament committed during a press conference at the National Assembly, stating, “We deeply empathize with the issues raised by civil society. We will reflect on our actions and show responsible behavior. We will make efforts to ensure that it is properly amended.”
But to date, nothing has been changed, and that’s not all. In February 2022, the 21th National Assembly went so far as to enact a new law(the Act On Special Measures For Strengthening The Competitiveness Of, And Protecting National High-tech Strategic Industries) that would have kept these toxic provisions intact and expanded their scope. It was the Democratic Party of Korea that took the lead. The National Assembly is not fixing the problem but rather expanding it.
The Task Force will continue to publicize these problems with the Act On Prevention Of Divulgence And Protection Of Industrial Technology and the Act On Special Measures For Strengthening The Competitiveness Of, And Protecting National High-tech Strategic Industries. And the TF will continue its efforts to rectify them. Specifically, we intend to file an unconstitutional law review in the relevant court or file a constitutional petition under Article 68-2 of the Constitutional Court. We look forward to receiving reports from companies or individuals who have received non-disclosure (partial disclosure) decisions under the two Acts above, or who have been investigated under these laws using technical information that is not a trade secret.
We continue to urge the National Assembly to amend the law. The court’s refusal to recognize the petitioners’ self-reliance based on the provision of Articles 14-8 and 34-10 of the Enforcement Decree is because the Enforcement Decree limits the possibility of abusing the law. So, to protect industrial technology without unnecessary misunderstanding, all that needs to be done is to amend the statutory provisions to align with what the Enforcement Decree has limited. There is already a proposed legislative amendment with such content. However, as of now, not a single session has been held to review the bill.
Last year alone, 20 amendments to the Act On Prevention Of Divulgence And Protection Of Industrial Technology were proposed. Most of them strengthen penalties or expand the scope of application to protect national core technologies and industrial technologies. It is necessary to revise the law to ensure that it is not misused to restrict public interest activities and is faithful to the protection of industrial technology. Above all, it is a law that can easily cover up many problems that threaten human life and health. The right to know that is being trampled on by this law must be restored.
January 10th, 2024
The Act On Prevention Of Divulgence And Protection Of Industrial Technology
Countermeasure Committee
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