법령, 판례 등 모든 법령정보를 한 번에 검색 OK !
UNFAIR COMPETITION PREVENTION AND TRADE SECRET PROTECTION ACT
[Enforcement Date 01. Sep, 2016.] [Act No.14033, 29. Feb, 2016., Amendment by Other Act]
특허청 (산업재산보호정책곾( �42-481-3310
법제처 국가법령정보센터 www.law.go.kr
2017.10.26
「UNFAIR COMPETITION PREVENTION AND TRADE SECRET PROTECTION ACT」
UNFAIR COMPETITION PREVENTION AND TRADE SECRET PROTECTION
ACT
[Enforcement Date 01. Sep, 2016.] [Act No.14033, 29. Feb, 2016., Amendment by Other Act]
특허청 (산업재산보호정책과) 042-481-3310
CHAPTER I GENERAL PROVISIONS
Article 1 (Purpose)
The purpose of this Act is to maintain orderly trade by preventing acts of unfair
competition such as improper use of domestically well-known trademarks and trade
names, and by preventing infringement of trade secrets.
[This Article Wholly Amended by Act No. 8767, Dec. 21, 2007]
Article 2 (Definitions)
The terms used in this Act shall be defined as follows:<Amended by Act No. 11112, Dec.
2, 2011; Act No. 11963, Jul. 30, 2013; Act No. 13081, Jan. 28, 2015>
1. The term "act of unfair competition" means any of the following acts:
(a) An act of causing confusion with another person's goods by using marks
identical or similar to, another person's name, trade name, trademark, or
container or package of goods, or any other mark indicating another person's
goods, which is widely known in the Republic of Korea; or by selling, distributing,
importing, or exporting goods bearing such marks;
(b) An act of causing confusion with another person's commercial facilities or
activities by using marks identical or similar to, another person's name, trade
name, or emblem, or any other mark indicating another person's business, which
is widely known in the Republic of Korea;
(c) In addition to the act of causing confusion provided in item (a) or (b); an act of
doing damage to distinctiveness or reputation attached to another person's mark
by using the mark identical or similar to, another person's name, trade name,
trademark, or container or package of goods, or any other mark indicating
another person's goods or business, which is widely known in the Republic of
Korea; or by selling, distributing, importing, or exporting goods bearing such
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marks; without good cause prescribed by Presidential Decree, such as the
purpose of noncommercial use;
(d) An act of causing confusion about the place of origin by making false marks of
the place of origin on goods, or on trade documents or in communications by
means of advertisements of the goods or in a manner that makes the public
aware of the marks; or by selling, distributing, importing, or exporting goods
bearing such marks;
(e) An act of making a mark that would mislead the public into believing that goods
are produced, manufactured, or processed at places, other than the actual places
of production, manufacture, or processing, on goods, or on trade documents or in
communications by means of advertisements of the goods or in a manner that
makes the public aware of the mark; or selling, distributing, importing, or
exporting goods bearing such mark;
(f) An act of falsely assuming another person's goods or an act of advertizing any
goods or making a mark in any manner of leading the public to misunderstand
their quality, content, manufacturing process, usage, or quantity, in latter goods
or advertisement thereof, or selling, distributing, importing, or exporting goods
using such method or mark;
(g) An act of using a trademark, without good cause, on goods identical or similar
to the designated goods of the trademark, or an act of selling, distributing,
exporting, or importing goods with such trademark, by an agent or a
representative of the owner of the trademark that is identical or similar to a
trademark registered in any of the following countries or by a person who was an
agent or a representative within one year of the date of such act:
(i) Any party to the Paris Convention for the Protection of Industrial Property
(hereinafter referred to as the "Paris Convention");
(ii) Any member state of the World Trade Organization;
(iii) Any signatory state of the Trademark Law Treaty;
(h) An act of registering, holding, transferring, or using a domain name identical or
similar to, another person's name, trade name, or trademark, or any other mark,
which is widely known in the Republic of Korea, by a person who does not have a
legitimate source of right for any of the following purposes:
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(i) The purpose of selling or lending a mark, including a trademark, to a person
who has a legitimate source of right concerning the mark or a third party;
(ii) The purpose of preventing a person who has a legitimate source of right from
registering or using a domain name;
(iii) Other purpose of obtaining any commercial profits;
(i) An act of transferring or lending goods whose shape has been copied (referring
to the form, image, color, gloss, or any combination of these, including the shape
of any prototype and the shape in goods brochure; hereinafter the same shall
apply) from the goods manufactured by any other person; exhibiting such goods
for transfer or lending; or importing or exporting such goods: Provided, That
either of the following acts shall be excluded herefrom:
(i) An act of transferring or lending goods whose shape has been manufactured by
counterfeiting the shape of the other goods for which three years have elapsed
from the date on which the shape of the other goods, including the production of
the prototype, was completed; exhibiting such goods for transfer or lending; or
importing or exporting such goods;
(ii) An act of transferring or lending goods whose shape has been manufactured by
counterfeiting the common shape of goods that are identical to the goods
manufactured by any other person (where the goods of the same kind are
nonexistent, referring to other goods whose function or utility is identical or
similar to the relevant goods); exhibiting such goods for transfer or lending; or
importing or exporting such goods;
(j) Any other acts of infringing on other persons' economic interests by using the
outcomes, etc. achieved by them through substantial investment or efforts, for
one's own business without permission, in a manner contrary to fair commercial
practices or competition order;
2. The term "trade secret" means information, including a production method, sale
method, useful technical or business information for business activities, that is not
known publicly, is the subject of reasonable efforts to maintain its secrecy, and has
independent economic value;
3. The term "infringement of trade secrets" means any of the following acts:
(a) An act of acquiring trade secrets by theft, deception, coercion, or other
improper means (hereinafter referred to as "act of improper acquisition"), or
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subsequently using or disclosing the trade secrets improperly acquired (including
informing any specific person of the trade secret while under a duty to maintain
secrecy; hereinafter the same shall apply);
(b) An act of acquiring trade secrets or using or disclosing the trade secrets
improperly acquired, with knowledge of the fact that an act of improper
acquisition of the trade secrets has occurred or without such knowledge due to
gross negligence;
(c) An act of using or disclosing trade secrets after acquiring them, with knowledge
of the fact that an act of improper acquisition of the trade secrets has occurred
or without such knowledge due to gross negligence;
(d) An act of using or disclosing trade secrets to obtain improper benefits or to
damage the owner of the trade secrets while under a contractual or other duty to
maintain secrecy of the trade secrets;
(e) An act of acquiring trade secrets, or using or disclosing them with the
knowledge of the fact that they have been disclosed in the manner provided in
item (d) or that such disclosure has been involved, or without such knowledge
due to gross negligence;
(f) An act of using or disclosing trade secrets after acquiring them, with the
knowledge of the fact that they have been disclosed in a manner provided in item
(d) or that such disclosure has been involved, or without such knowledge due to
gross negligence;
4. The term "domain name" means a number, a letter, or a sign, or any combination
of these, which constitutes an Internet address composed of numbers.
[This Article Wholly Amended by Act No. 8767, Dec. 21, 2007]
Article 2-2 (Business for Unfair Competition Prevention and Trade Secret Protection)
For the prevention of acts of unfair competition and protection of trade secrets, the
Commissioner of the Korean Intellectual Property Office may engage in research,
education and public relations, construction and operation of an information
management system for the prevention of unfair competition, and other business
prescribed by Presidential Decree.
[This Article Newly Inserted by Act No. 9537, Mar. 25, 2009]
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CHAPTER II PROHIBITION OF UNFAIR COMPETITIVE ACTS
Article 3 (Prohibition of Use of National Flags and National Emblems, etc.) (1) No
person shall use as a trademark a symbol that is identical or similar to the national
flag, emblem, or other insignia of any party to the Paris Convention, any member
state of the World Trade Organization, or any signatory state of the Trademark Law
Treaty, a mark of an international organization: Provided, That the same shall not
apply where such use is authorized by the state or international organization
concerned.
(2) No person shall use as a trademark a symbol that is identical or similar to any
mark of inspection or certification of the government of any party to the Paris
Convention, any member state of the World Trade Organization, or any signatory
state of the Trademark Law Treaty: Provided, That the same shall not apply where
such use is authorized by the government concerned.
[This Article Wholly Amended by Act No. 8767, Dec. 21, 2007]
Article 3-2 (Prohibition of Use of Geographic Mark Protected under Free Trade
Agreement, etc.) (1) As to a geographic mark protected under a free trade
agreement which is concluded bilaterally or multilaterally and takes effect between
the Republic of Korea and a foreign country, or foreign countries, (hereafter referred
to as "geographic mark" in this Article), in addition to the act of unfair competition
under subparagraph 1 (d) and (e) of Article 2, any person who does not have a
legitimate source of right shall not conduct any of the following acts with respect to
the goods whose place of origin is not the one indicated in the geographic mark
concerned (limited to goods that are identical to or recognized to be identical to the
goods with the relevant geographic mark):
1. Using a geographic mark separately, in addition to the authentic place of origin;
2. Using a geographic mark which is translated or transliterated;
3. Using a geographic mark with the expression of "kind", "type", "mode",
"counterfeit", or other expressions.
(2) Any person who does not have a legitimate source of right shall not conduct any
of the following acts:
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1. An act of transferring or delivering goods with a geographic mark in a manner
referred to in any subparagraph of paragraph (1), or an act of exhibiting, importing,
or exporting such goods for any aforementioned purpose;
2. An act of delivering goods with a geographic mark in a manner referred to in
subparagraph 1 (d) or (e) of Article 2, or an act of exhibiting for any
aforementioned purpose.
(3) Notwithstanding paragraph (1), a person who uses a trademark in a manner
referred to in any subparagraph of paragraph (1) and has satisfied all the following
requirements may continue to use the relevant trademark on the goods that have
been used by the person:
1. That the relevant trademark shall be used at home prior to the date when the
protection of a geographic mark commences;
2. The outcome of the use of the trademark under subparagraph 1 shall reveal that
domestic consumers recognize the relevant trademark as the one indicated on any
particular person's goods on the date when the protection of a geographic mark
commences.
[This Article Newly Inserted by Act No. 10810, Jun. 30, 2011]
Article 4 (Right to Request Prohibition of Acts of Unfair Competition, etc.) (1) A person
whose business interest is injured or threatened by an act of unfair competition or a
violation of Article 3-2 (1) or (2) may file a request, with the court, for prohibition
or prevention against any person who conducts or intends to conduct an act of unfair
competition or a violation of Article 3-2 (1) or (2). <Amended by Act No. 10810, Jun. 30,
2011>
(2) When a person files a request under paragraph (1), he/she may also request the
following measures:<Amended by Act No. 10810, Jun. 30, 2011>
1. Destruction of the goods that promote an act of unfair competition or a violation of
Article 3-2 (1) or (2);
2. Removal of the facilities used during an act of unfair competition or a violation of
Article 3-2 (1) or (2);
3. Cancellation of registration of the domain name which is the object of an act of
unfair competition or a violation of Article 3-2 (1) or (2);
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4. Any other measures necessary to prohibit or prevent an act of unfair competition
or a violation of Article 3-2 (1) or (2).
[This Article Wholly Amended by Act No. 8767, Dec. 21, 2007]
Article 5 (Liability for Compensation of Damage from Acts of Unfair Competition, etc.)
A person who causes damage to another person's business interest by intentionally
or negligently engaging in an act of unfair competition or an act of violation of Article
3-2 (1) or (2) (only referring to an act of unfair competition committed intentionally
in the case of subparagraph 1 (c) of Article 2) shall be liable for compensation of
damage.<Amended by Act No. 10810, Jun. 30, 2011>
[This Article Wholly Amended by Act No. 8767, Dec. 21, 2007]
Article 6 (Restoration of Reputation Damaged by Acts of Unfair Competition, etc.)
The court may order a person who has damaged the business reputation of another
person by intentionally or negligently engaging in an act of unfair competition or an
act of violation of Article 3-2 (1) or (2) (only referring to an act of unfair
competition committed intentionally in the case of subparagraph 1 (c) of Article 2) to
take a measure necessary for restoring the business reputation in addition to or in
lieu of compensation for damage prescribed in Article 5, upon receipt of a claim from
a person whose business interest is infringed by the act of unfair competition or the
act of violation of Article 3-2 (1) or (2).
[This Article Wholly Amended by Act No. 8767, Dec. 21, 2007]
Article 7 (Investigation, etc. of Acts of Unfair Competition, etc.) (1) The Commissioner
of the Korean Intellectual Property Office, the Special Metropolitan City Mayor, a
Metropolitan City Mayor, a Metropolitan Autonomous City Mayor, a Do Governor, or
a Special Self-Governing Province Governor (hereinafter referred to as the
"Mayor/Do Governor") or the head of a Si/Gun/Gu (the head of a Gu means the head
of an autonomous Gu; hereinafter the same shall apply) may have a related public
official enter business or manufacturing facilities to examine relevant documents,
books, or products or to collect the least amount of products necessary for testing
and inspecting them; if deemed necessary to ascertain whether an act of unfair
competition provided in subparagraph 1 (a) through (g) of Article 2 or a violation of
Article 3 or 3-2 (1) or (2) has occurred and where otherwise it is impracticable to
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ascertain whether such act of unfair competition or violation has occurred. <Amended
by Act No. 10810, Jun. 30, 2011; Act No. 13844, Jan. 27, 2016>
(2) Where the Commissioner of the Korean Intellectual Property Office, the
Mayor/Do Governor, or the head of a Si/Gun/Gu conducts the investigation under
paragraph (1), he/she shall avoid overlapping investigations pursuant to Article 15 of
the Framework Act on Administrative Investigations.<Newly Inserted by Act No. 10810,
Jun. 30, 2011>
(3) A public official who conducts the investigation, etc. under paragraph (1) shall
carry a certificate indicating his/her authority and produce it to interested parties.
<Amended by Act No. 10810, Jun. 30, 2011>
[This Article Wholly Amended by Act No. 8767, Dec. 21, 2007]
Article 8 (Recommendations for Correction of Violations)
If the Commissioner of the Korean Intellectual Property Office, the Mayor/Do
Governor, or the head of a Si/Gun/Gu recognizes that an act of unfair competition
provided in subparagraph 1 (a) through (g) of Article 2 or a violation referred to in
Article 3 or 3-2 (1) or (2) has occurred, he/she may issue a recommendation
necessary for correction to the person to cease the act or to remove or destroy the
mark used in the act within a specific period not exceeding 30 days.<Amended by Act
No. 10810, Jun. 30, 2011>
[This Article Wholly Amended by Act No. 8767, Dec. 21, 2007]
Article 9 (Hearing of Opinions)
If deemed necessary to issue a recommendation for correction under Article 8, the
Commissioner of the Korean Intellectual Property Office, the Mayor/Do Governor, or
the head of a Si/Gun/Gu shall hear opinions of the relevant party, interested persons,
or witnesses, as prescribed by Presidential Decree.<Amended by Act No. 10810, Jun. 30,
2011>
[This Article Wholly Amended by Act No. 8767, Dec. 21, 2007]
CHAPTER III PROTECTION OF TRADE SECRETS
Article 9-2 (Certification of Original Document of Trade Secrets) (1) In order to have
an electronic document certified as to whether it is an original document containing
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trade secrets, a person who possesses trade secrets may file for registration of the
unique identification value extracted from the relevant electronic document
(hereinafter referred to as "electronic fingerprint") with an agency that certifies the
original documents of trade secrets under Article 9-3.
(2) Where the electronic fingerprint registered under paragraph (1) and the
electronic fingerprint extracted from the electronic document kept by a person who
possesses trade secrets are the same, an agency that certifies the original
documents of trade secrets under Article 9-3 may issue a certificate verifying that
the relevant electronic document is the original registered with the electronic
fingerprint (hereinafter referred to as "certificate of the original document").
(3) A person who has been issued with a certificate of the original document under
paragraph (2), shall be deemed to possess the information as stated in the relevant
electronic document as at the time the electronic fingerprint referred to in paragraph
(1) is registered.<Newly Inserted by Act No. 13081, Jan. 28, 2015>
[This Article Newly Inserted by Act No. 11963, Jul. 30, 2013]
Article 9-3 (Designation, etc. of Original Document Certification Agency) (1) The
Commissioner of the Korean Intellectual Property Office may designate a person who
has the expertise in the duties of certifying electronic documents containing trade
secrets as the original by using electronic fingerprints (hereinafter referred to as
"duties of certifying original documents"), as an agency that certifies the original
documents of trade secrets (hereinafter referred to as "original document
certification agency") in consultation with the Administrator of the Small and Medium
Business Administration.
(2) A person who intends to be designated as an original document certification
agency shall file an application therefor with the Commissioner of the Korean
Intellectual Property Office after fulfilling the requirements for professional
manpower, facilities, etc. prescribed by Presidential Decree.
(3) The Commissioner of the Korean Intellectual Property Office may fully or
partially subsidize the expenses required by an original document certification
agency to perform the duties of certifying original documents.
(4) In order to ensure the safety and reliability of performance of duties of certifying
original documents, an original document certification agency shall comply with the
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matters prescribed by Presidential Decree with respect to the following:
1. Extraction, registration, and safekeeping of electronic fingerprints;
2. Certification of original documents of trade secrets and the issuance of certificates
of original documents;
3. Management of professional manpower and protection of facilities necessary for
performing the duties of certifying original documents;
4. Operation, management, etc. of other duties of certifying original documents.
(5) Matters necessary for the criteria and procedures for the designation of an
original document certification agency shall be prescribed by Presidential Decree.
[This Article Newly Inserted by Act No. 11963, Jul. 30, 2013]
Article 9-4 (Corrective Orders, etc. to Original Document Certification Agency) (1)
Where an original document certification agency falls under any of the following
cases, the Commissioner of the Korean Intellectual Property Office may order it to
take corrective measures within a fixed period not exceeding six months:
1. Where it does not satisfy the requirements prescribed in Article 9-3 (2) any
more after having been designated as an original document certification agency;
2. Where it fails to comply with the matters prescribed by Presidential Decree under
Article 9-3 (4).
(2) Where an original document certification agency uses the subsidy granted under
Article 9-3 (3) for purposes other than the intended, the Commissioner of the
Korean Intellectual Property Office may order it to return the subsidy within a fixed
period.
(3) Where an original document certification agency falls under any of the following
cases, the Commissioner of the Korean Intellectual Property Office may revoke the
designation or may order it to fully or partially suspend the duties of certifying
original documents for a fixed period not exceeding six months: Provided, That in the
case of subparagraph 1 or 2, the designation shall be revoked:
1. Where the agency is designated by fraud or other improper means;
2. Where a person who has been ordered to fully or partially suspend the duties of
certifying original documents performs the duties of certifying original documents
in violation of such order;
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3. Where the agency fails to commence the performance of duties of certifying
original documents within six months from the date on which it is designated as an
original document certification agency or discontinues the performance of duties of
certifying original documents for at least six consecutive months, without good
reason;
4. Where the agency fails to comply with the corrective order issued under
paragraph (1) without good reason;
5. Where the agency fails to comply with the order to return the subsidy issued
under paragraph (2).
(4) An original document certification agency whose designation has been revoked
under paragraph (3), shall hand over the records related to the duties of certifying
original documents, such as registered electronic fingerprints and other records on
the registration of electronic fingerprints, to another original document certification
agency designated by the Commissioner of the Korean Intellectual Property Office
within three months from the date on which the designation is revoked: Provided,
That where the agency is unable to hand over the records concerning the duties of
certifying original documents for any unavoidable reason, such as the rejection of the
takeover thereof by another original document certification agency, it shall notify
such fact to the Commissioner of the Korean Intellectual Property Office without
delay.
(5) Where an original document certification agency whose designation has been
revoked under paragraph (3), fails to hand over the records related to the duties of
certifying original documents or to notify the fact that it is unable to hand over the
records, the Commissioner of the Korean Intellectual Property Office may issue an
order to correct it.
(6) Detailed standards and procedures for the dispositions under paragraph (3) and
matters necessary for the handover and takeover under paragraph (4) shall be
prescribed by Presidential Decree.
[This Article Newly Inserted by Act No. 11963, Jul. 30, 2013]
Article 9-5 (Penalty Surcharges) (1) Where the Commissioner of the Korean
Intellectual Property Office is to issue an order for suspension of duties under
Article 9-4 (3) and such suspension of duties is likely to cause severe
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inconvenience to persons who utilize the relevant original document certification
agency or cause harm to public interest, he/she may impose a penalty surcharge not
exceeding 100 million won in lieu of the suspension order.
(2) Where a person who is subject to the imposition of penalty surcharge under
paragraph (1), fails to pay the penalty surcharge by the due date, the Commissioner
of the Korean Intellectual Property Office shall collect it in the same manner as
delinquent national taxes are collected.
(3) The amount of a penalty surcharge and the method of calculation thereof
according to the types and gravity of violations subject to the imposition of penalty
surcharges under paragraph (1), and other necessary matters shall be prescribed by
Presidential Decree.
[This Article Newly Inserted by Act No. 11963, Jul. 30, 2013]
Article 9-6 (Hearings)
If the Commissioner of the Korean Intellectual Property Office intends to revoke the
designation or order the suspension of duties under Article 9-4 (3), he/she shall
hold a hearing.
[This Article Newly Inserted by Act No. 11963, Jul. 30, 2013]
Article 9-7 (Keeping Confidentiality, etc.) (1) No person shall eliminate, damage, alter,
forge, or leak any electronic fingerprints registered with an original document
certification agency or other information related thereto.
(2) No person who is, or was, an executive officer or employee of an original
document certification agency, shall divulge any confidential information he/she has
learned in the course of performing his/her duties.
[This Article Newly Inserted by Act No. 11963, Jul. 30, 2013]
Article 10 (Right to Request Prohibition of Infringement of Trade Secrets, etc.) (1) A
person who possesses trade secrets, may file a request, with the court, for
prohibition or prevention of infringement against any person who infringes or is
likely to infringe trade secrets, if business interests of the person who possesses the
trade secrets is damaged or is likely to be damaged by such infringement.
(2) If a person who possesses trade secrets, files a request under paragraph (1), the
person may request the destruction of goods constituting the infringement, the
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removal of facilities used in the infringement, or any other measures necessary to
prohibit or prevent the infringement.
[This Article Wholly Amended by Act No. 8767, Dec. 21, 2007]
Article 11 (Liability for Damages for Infringement on Trade Secrets)
A person who damages the business interest of a person who possesses trade
secrets through an intentional or negligent infringement of trade secrets, shall be
liable for compensation for such damage.
[This Article Wholly Amended by Act No. 8767, Dec. 21, 2007]
Article 12 (Restoration of Reputation of Person Possessing Trade Secrets)
Upon receipt of a request from a person possessing trade secrets, the court may
order a person who damages business reputation of a person possessing trade
secrets through an intentional or negligent infringement of trade secrets, to take
measures necessary to restore the business reputation in lieu of or in addition to
compensation for damage under Article 11.
[This Article Wholly Amended by Act No. 8767, Dec. 21, 2007]
Article 13 (Special Cases concerning Bona Fide Persons) (1) Articles 10 through 12
shall not apply to an act by a person who has properly acquired trade secrets
through a transaction or uses or discloses the trade secrets within the scope of the
rights the person has properly acquired through the transaction.
(2) "Person who has properly acquired trade secrets" in paragraph (1) means a
person who has obtained trade secrets without the knowledge and without gross
negligence that the trade secrets were improperly disclosed or that an act of
improper acquisition or of improper disclosure of the trade secrets occurred when
he/she acquired under subparagraph 3 (c) or (f) of Article 2.
[This Article Wholly Amended by Act No. 8767, Dec. 21, 2007]
Article 14 (Prescription)
When infringement of trade secrets continues, the right to request prohibition or
prevention of the infringement of trade secrets under Article 10 (1) expires unless
the right is exercised within three years from the date on which a person possessing
trade secrets learned the fact that business interests were damaged or threatened to
be damaged by an infringer and the identity of the infringer. The same shall also
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apply where ten years have elapsed after the date on which the act of infringement
first occurred.
[This Article Wholly Amended by Act No. 8767, Dec. 21, 2007]
CHAPTER IV SUPPLEMENTARY PROVISIONS
Article 14-2 (Presumption, etc. on the Amount of Damage) (1) Where a person whose
business interests have been infringed by an act of unfair competition, a violation
referred to in Article 3-2 (1) or (2), or infringement of trade secrets, claims
compensation for damage under Article 5 or 11; and where the person who has
infringed the business interests transfers the goods causing the act of unfair
competition, violation referred to in Article 3-2 (1) or (2), or infringement of trade
secrets; the amount calculated by multiplying the transferred amount in subparagraph
1 by the presumed profit per unit in subparagraph 2, may be set as damages for the
person whose business interest has been infringed. In such cases, the amount of
damage may not exceed an amount calculated by multiplying the estimated profit per
unit by the number of articles that the person whose business interest has been
infringed could have produced, subtracted by the number of units actually sold:
Provided, That where a person whose business interest has been infringed was
unable to sell the product for reasons other than the act of unfair competition,
violation referred to in Article 3-2 (1) or (2), or infringement of trade secrets, a
sum calculated according to the number of articles subject to the reasons shall be
deducted: <Amended by Act No. 10810, Jun. 30, 2011>
1. The amount of goods transferred;
2. Profit per unit quantity of the goods that a person whose business interest has
been infringed would have been able to sell, if there had been no such act of unfair
competition, violence referred to in Article 3-2 (1) or (2), or infringement of trade
secrets.
(2) Where a person whose business interests have been infringed by an act of unfair
competition, violence referred to in Article 3-2 (1) or (2), or infringement of trade
secrets, claims compensation for damage under Article 5 or 11, the profits gained by
the infringer through the infringement, if any, are presumed to be the amount of
damage suffered by the person whose business interests have been infringed.
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<Amended by Act No. 10810, Jun. 30, 2011>
(3) Where a person whose business interests have been infringed by an act of unfair
competition, violation referred to in Article 3-2 (1) or (2), or infringement of trade
secrets, claims compensation for damage under Article 5 or 11, he/she may claim as
damages the amount of money that the person would normally be entitled to receive
for using a mark applied to goods if the mark was the object of an act of unfair
competition or a violation referred to in Article 3-2 (1) or (2), or for using trade
secrets that were the object of the infringement.<Amended by Act No. 10810, Jun. 30,
2011>
(4) Where the amount of actual damage caused by an act of unfair competition,
violation referred to in Article 3-2 (1) or (2), or infringement of trade secrets
exceeds the amount under paragraph (3), the excess amount may also be claimed as
compensation for damage. In such cases, when awarding damages, the court may
consider whether the person who has infringed the business interest was willful or
grossly negligent.<Amended by Act No. 10810, Jun. 30, 2011>
(5) Where the court recognizes in litigation the extreme difficulty, owing to the
nature of the case, of proving the amount of damage that has occurred related to an
act of unfair competition, violation referred to in Article 3-2 (1) or (2), or
infringement of trade secrets, the court may determine a resonable amount on the
basis of the entire tenor of oral proceedings and the results of evidence
investigations, notwithstanding paragraphs (1) through (4).<Amended by Act No. 10810,
Jun. 30, 2011>
[This Article Wholly Amended by Act No. 8767, Dec. 21, 2007]
Article 14-3 (Submission of Materials)
In litigation related to the infringement of business interests through an act of unfair
competition, violation referred to in Article 3-2 (1) or (2), or infringement of trade
secrets, the court may, upon the request of either party, order the other party to
submit materials necessary for the assessment of damage caused by the
infringement: Provided, That the same shall not apply where the holder of such
materials has a good reason for the refusal of the submission thereof.<Amended by Act
No. 10810, Jun. 30, 2011>
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[This Article Wholly Amended by Act No. 8767, Dec. 21, 2007]
Article 14-4 (Confidentiality Order) (1) In litigation related to the infringement of
business interests through an act of unfair competition, violation referred to in
Article 3-2 (1) or (2), or infringement of trade secrets, where the relevant party
has verified the accuracy of both of the following information as to the trade secrets
held by him/her, the court may order, by decision, the other party (in cases of a
juristic person, its representative), the relevant party's legal counsel, or any other
person who has acquired such trade secrets due to said litigation neither to use such
trade secrets for purposes other than for continuing said litigation nor to disclose
such secrets to persons other than those who have been ordered in relation to such
secrets pursuant to this paragraph, upon the request of the relevant party: Provided,
That the same shall not apply where the other party (in cases of a juristic person, its
representative), the relevant party's legal counsel, or any other person who has
acquired the trade secrets due to said litigation has already been aware of such
secrets by a method other than inspection of the legal brief or investigation of the
evidence as referred to in subparagraph 1 as at the time such request is made:
1. That the legal brief already submitted or to be submitted or the evidence already
investigated or to be investigated contains trade secrets;
2. The business secrets referred to in subparagraph 1, if used or disclosed for
purposes other than for conducting said litigation, are likely to impede the business
operation of the relevant party, so that it is required to place a restriction on the
use or disclosure of such trade secrets in order to prevent the impediment.
(2) A request for issuing an order under paragraph (1) (hereinafter referred to as
“confidentiality order”) shall be made in a written form that indicates the following:
1. A person who will be subject to the confidentiality order;
2. The facts sufficient to specify the trade secrets to be protected by the
confidentiality order;
3. The facts that correspond to the causes described in the subparagraphs of
paragraph (1).
(3) Where the court has determined to issue a confidentiality order, it shall serve the
written decision on the person subject to the confidentiality order.
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(4) A confidentiality order shall take effect when the written decision referred to in
paragraph (3) is served on the person subject to the confidentiality order.
(5) A relevant party may lodge an immediate complaint against a trial that has
dismissed or rejected his/her application for a confidentiality order.
[This Article Newly Inserted by Act No.11112, Dec. 2, 2011]
Article 14-5 (Revocation of Confidentiality Order) (1) A person who has requested a
confidentiality order or a person subject to a confidentiality order may, if he/she fails
or ceases to satisfy the requirements under Article 14-4 (1), apply for the
revocation of the confidentiality order to the court that maintains the relevant trial
record (where no such court exists, referring to the court that has issued the
confidentiality order).
(2) Where a trial is held in relation to a request for revocation of a confidentiality
order, the court shall serve the written decision on the person who has requested the
revocation and the other party.
(3) A relevant party may lodge an immediate complaint against a trial related to
his/her request for the revocation of a confidentiality order.
(4) A trial revoking a confidentiality order shall take effect when it becomes final and
conclusive.
(5) If there exists any person subject to a confidentiality order as to relevant trade
secrets, other than the person who has requested the revocation of the
confidentiality order or the other party, the court that has rendered a judgment to
revoke the confidentiality order shall notify such person of the fact that the trial to
revoke the confidentiality order was held.
[This Article Newly Inserted by Act No.11112, Dec. 2, 2011]
Article 14-6 (Notification, etc. of Request for Inspection, etc. of Trial Record) (1)
Where a decision under Article 163 (1) of the Civil Procedure Act has been rendered
for the trial record respecting a trial that has issued a confidentiality order
(excluding trials revoking any and all confidentiality orders) and there was a request
by the relevant party to inspect the part containing the trade secrets specified in the
same paragraph or take any other similar action, but the procedures for such request
have been taken by a person not subject to a confidentiality order in the litigation at
issue, a court official of Grade IV, court official of Grade V, court official of Grade VI,
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or court official of Grade VII (hereafter referred to as “court official of Grade V,
etc.” in this Article) shall notify the person who has made a request under Article
163 (1) of the Civil Procedure Act (excluding the person who has requested the
inspection, etc. thereof: hereafter the same shall apply in paragraph (3)) of the fact
that a request for the inspection, etc. thereof was made immediately after such
request.
(2) In the case of paragraph (1), until two weeks have elapsed from the date a
request under paragraph (1) was made (where a request for issuing a confidentiality
order to the person who has taken procedures for such request was made within the
said period, until the time a trial regarding such request has become final and
conclusive), no court official of Grade V, etc. shall permit the person who has taken
procedures for such request to inspect the part containing the trade secrets specified
in paragraph (1) or take any other similar action.
(3) Paragraph (2) shall not apply where all the parties who have filed a request
under Article 163 (1) of the Civil Procedure Act give their consent to permitting the
person who has requested inspection, etc. under paragraph (1) to inspect the part
containing the trade secrets specified in paragraph (1) or take any other similar
action.
[This Article Newly Inserted by Act No.11112, Dec. 2, 2011]
Article 15 (Relationship to Other Acts) (1) If any provision of the Patent Act, the Utility
Model Act, the Design Protection Act, the Trademark Act, the Agricultural and
Fishery Products Quality Control Act, or the Copyright Act is inconsistent with
Articles 2 through 6 and 18 (3) of this Act, such provisions of the relevant Acts shall
preferentially apply. <Amended by Act No. 10810, Jun. 30, 2011; Act No. 11963, Jul. 30, 2013>
(2) If any provision concerning the national flag or emblem referred to in the
Monopoly Regulation and Fair Trade Act, the Act on Fair Labeling and Advertising,
or the Criminal Act is inconsistent with subparagraph 1 (d) through (f) and (j) of
Article 2, and Articles 3 through 6 and 18 (3) of this Act, such provisions of the
relevant Acts shall preferentially apply.<Amended by Act No. 11963, Jul. 30, 2013>
[This Article Wholly Amended by Act No. 8767, Dec. 21, 2007]
Article 16 (Payment of Monetary Rewards for Reports) (1) The Commissioner of the
Korean Intellectual Property Office may pay a monetary reward to a person who files
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a report on a person who has conducted an act of unfair competition referred to in
subparagraph 1 (a) of Article 2 (limited to cases related to registered trademarks
defined in Article 2 (1) 10 of the Trademark Act) within the budget. <Amended by Act
No. 14033, Feb. 29, 2016>
(2) Standards for the payment of monetary rewards for reports and the methods and
procedures therefor under paragraph (1) shall be prescribed by Presidential Decree.
[This Article Newly Inserted by Act No. 11963, Jul. 30, 2013]
Article 17 (Entrustment of Duties, etc.) (1) Deleted. <by Act No. 10810, Jun. 30, 2011>
(2) The Commissioner of the Korean Intellectual Property Office may entrust the
duties of research, education, public relations, and construction and operation of an
information management system provided in Article 2-2 to a corporation or
organization (hereafter referred to as the "specialized organization" in this Article)
related to the duties of protection of industrial property rights or prevention of unfair
competition prescribed by Presidential Decree.<Newly Inserted by Act No. 9537, Mar. 25,
2009>
(3) The Commissioner of the Korean Intellectual Property Office, the Mayor/Do
Governor, or the head of a Si/Gun/Gu may receive assistance from a specialized
organization if necessary for performing the duties under Article 7 or 8.<Newly
Inserted by Act No. 9537, Mar. 25, 2009; Act No. 10810, Jun. 30, 2011>
(4) Article 7 (3) shall apply mutatis mutandis to those who engage in assistance
services under paragraph (3).<Newly Inserted by Act No. 9537, Mar. 25, 2009; Act No. 10810,
Jun. 30, 2011>
(5) The Commissioner of the Korean Intellectual Property Office may fully or
partially subsidize the expenses incurred in the services entrusted under paragraph
(2) and the assistance services under paragraph (3) within the budget.<Newly Inserted
by Act No. 9537, Mar. 25, 2009>
[This Article Wholly Amended by Act No. 8767, Dec. 21, 2007]
Article 17-2 (Re-Examination of Regulation)
The Commissioner of the Korean Intellectual Property Office shall examine the
appropriateness of the following matters every three years, counting from January 1,
2015 (referring to the period that ends on the day before the base date of every
third year) and shall take measures, such as making improvements:
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1. Standards for administrative dispositions imposed upon an original document
certification agency under Article 9-4;
2. Standards for the imposition of administrative fines under Article 20.
[This Article Newly Inserted by Act No. 13844, Jan. 27, 2016]
Article 17-3 (Legal Fiction as Public Official in Application of Penalty Provisions)
Those who engage in assistance services under Article 17 (3) shall be deemed a
public official in application of penalty provisions under Articles 127 and 129 through
132 of the Criminal Act.
[This Article Newly Inserted by Act No. 9537, Mar. 25, 2009]
Article 18 (Penalty Provisions) (1) Any person who has used trade secrets abroad or
has acquired, used, or leaked to any third party, such trade secrets with knowledge
of the fact that they will be used overseas, for the purpose of making an improper
profit or causing damage to a person who possesses trade secrets, shall be punished
by imprisonment with labor for not more than ten years or by a fine not exceeding
100 million won: Provided, That where he/she is punished by a fine and the amount
equal to ten times the amount of profit in property acquired by the violation exceeds
100 million won, a fine equal to two to ten times the amount of profit in property
shall be imposed. <Amended by Act No. 9895, Dec. 30, 2009; Act No. 11963, Jul. 30, 2013>
(2) Any person who has acquired, used, or leaked to any third party, trade secrets
for the purpose of making an improper profit or causing damage to a person who
possesses trade secrets shall be punished by imprisonment with labor for not more
than five years or by a fine not exceeding 50 million won: Provided, That if where
he/she is punished by a fine and the amount equal to ten times the amount of profit in
property acquired by the violation exceeds 50 million won, a fine equal to two to ten
times the amount of profit in property shall be imposed.<Amended by Act No. 11963, Jul.
30, 2013>
(3) Any of the following persons shall be punished by imprisonment with labor for
not more than three years or by a fine not exceeding 30 million won:<Amended by Act
No. 11963, Jul. 30, 2013>
1. A person who has engaged in an act of unfair competition under subparagraph 1 of
Article 2 (excluding items (h) and (j));
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2. A person who, in violation of Article 3, has used as a trademark a symbol that is
identical or similar to any of the following insignias or marks:
(a) The national flag, national emblem, or other insignias of a party to the Paris
Convention, a member state of the World Trade Organization, or a signatory state
of the Trademark Law Treaty;
(b) The mark of an international organization;
(c) The mark of inspection or certification of a party to the Paris Convention, a
member state of the World Trade Organization, or a signatory state of the
Trademark Law Treaty.
(4) Any of the following persons shall be punished by imprisonment with labor for
not more than one year or by a fine not exceeding ten million won:<Newly Inserted by
Act No. 11963, Jul. 30, 2013>
1. A person who has eliminated, damaged, altered, forged, or leaked any electronic
fingerprints registered with an original document certification agency or any other
information related thereto, in violation of Article 9-7 (1);
2. A person who has divulged any confidential information he/she learned in the
course of performing his/her duties.
(5) Imprisonment with labor and a fine referred to in paragraphs (1) and (2) may be
concurrently imposed.
[This Article Wholly Amended by Act No. 8767, Dec. 21, 2007]
Article 18-2 (Attempted Crimes)
Any person who has attempted to commit a crime provided in Article 18 (1) and (2)
shall be punished.
[This Article Wholly Amended by Act No. 8767, Dec. 21, 2007]
Article 18-3 (Criminal Intent and Conspiracy) (1) Any person who intends or conspires
to commit a crime under Article 18 (1), shall be punished by imprisonment with labor
for not more than three years or by a fine not exceeding 20 million won.
(2) Any person who intends or conspires to commit a crime under Article 18 (2),
shall be punished by imprisonment with labor for not more than two years or by a
fine not exceeding ten million won.
[This Article Wholly Amended by Act No. 8767, Dec. 21, 2007]
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Article 18-4 (Violation of Confidentiality Order) (1) Any person who has violated a
confidentiality order issued under Article 14-4 (1) without good cause in the
Republic of Korea or overseas, shall be punished by imprisonment with labor for not
more than five years or by a fine not exceeding fifty million won.
(2) No prosecution against a crime under paragraph (1) shall be instituted without a
criminal complaint thereof filed by an interested party.
[This Article Newly Inserted by Act No.11112, Dec. 2, 2011]
Article 19 (Joint Penalty Provisions)
If the representative of a corporation or an agent or employee of, or other persons
employed by, the corporation or an individual commits any of the violations referred
to in Article 18 (1) through (4) in conducting the business affairs of the corporation
or individual, the corporation or individual shall, in addition to punishing the violators
accordingly, be subject to a fine prescribed in the relevant Article: Provided, That
this shall not apply where the corporation or individual is not negligent in giving due
care and supervision to prevent such violation with regard to the relevant business
affairs.<Amended by Act No. 11963, Jul. 30, 2013>
[This Article Wholly Amended by Act No. 9225, Dec. 26, 2008]
Article 20 (Administrative Fines) (1) Any of the following persons shall be punished by
an administrative fine not exceeding 20 million won: <Amended by Act No. 11963, Jul. 30,
2013>
1. A person who has refused, interfered with, or evaded investigation or collection by
the relevant public official under Article 7 (1);
2. A person who has failed to comply with a corrective order, in violation of Article
9-4 (5).
(2) Administrative fines under paragraph (1) shall be imposed and collected by the
Commissioner of the Korean Intellectual Property Office, the Mayor/Do Governor, or
the head of a Si/Gun/Gu, as prescribed by Presidential Decree.<Amended by Act No.
10810, Jun. 30, 2011>
(3) through (5) Deleted.<by Act No. 9895, Dec. 30, 2009>
[This Article Wholly Amended by Act No. 8767, Dec. 21, 2007]
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ADDENDA <No. 4478, 31. Dec, 1991>
(1) (Enforcement Date) This Act shall enter into force on the date determined by
Presidential Decree within one year after the date of its promulgation.
[This Act shall enter into force on December 15, 1992 under Presidential Decree No.
13781, December 14, 1992]
(2) (Transitional Measures concerning Act, etc. of Infringing on Trade Secret prior
to Enforcement of this Act) The amended provisions of Articles 10 through 12, and
18 (1) 3 shall not apply to any act of infringing on a trade secret, which has been
committed before this Act enters into force. The same shall also apply where any
person who has obtained or used a trade secret before this Act enters into force
uses such trade secret after this Act enters into force.
ADDENDA <No. 5454, 13. Dec, 1997>
This Act shall enter into force on January 1, 1998. (Proviso Omitted.)
ADDENDA <No. 5621, 31. Dec, 1998>
(1) (Enforcement Date) This Act shall enter into force on January 1, 1999.
(2) (Transitional Measures concerning Penalty Provisions) In the application of
penalty provisions to any act of infringing on trade secrets which has been
committed before this Act enters into force, the previous provisions shall apply.
(3) (Transitional Measures concerning Extinctive Prescription) Notwithstanding the
amended provisions of Article 14, with respect to the extinctive prescription of the
right to file a claim for prohibition or prevention of any act of infringing on trade
secrets which has been committed before this Act enters into force, the previous
provisions shall apply.
ADDENDA <No. 5814, 05. Feb, 1999>
Article 1 (Enforcement Date)
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This Act shall enter into force on July 1, 1999.
Articles 2 through 5 Omitted.
ADDENDA <No. 6421, 03. Feb, 2001>
(1) (Enforcement Date) This Act shall enter into force on July 1, 2001.
(2) (Special Cases concerning Application of Penalty Provisions) Notwithstanding
Article 18 (3), the penalty provisions under the same paragraph of the same Article
shall not apply to persons who have committed any unfair competitive act referred to
in the amended provisions of subparagraph 1 (c) and (g) of Article 2, not later than
December 31, 2001.
ADDENDA <No. 7095, 20. Jan, 2004>
(1) (Enforcement Date) This Act shall enter into force six months after the date of
its promulgation.
(2) (Transitional Measures) Any person who has violated the previous provisions of
Article 18 (1) and (2) before this Act enters into force shall be governed by the
previous provisions.
ADDENDA <No. 7289, 31. Dec, 2004>
Article 1 (Enforcement Date)
This Act shall enter into force six months after the date of its promulgation.
Articles 2 through 5 Omitted.
ADDENDA <No. 8767, 21. Dec, 2007>
This Act shall enter into force on the date of its promulgation.
ADDENDA <No. 9225, 26. Dec, 2008>
This Act shall enter into force on the date of its promulgation.
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ADDENDA <No. 9537, 25. Mar, 2009>
This Act shall enter into force on the date of its promulgation.
ADDENDA <No. 9895, 30. Dec, 2009>
This Act shall enter into force three months after the date of its promulgation.
ADDENDA <No. 10810, 30. Jun, 2011>
This Act shall enter into force three months after the date of its promulgation:
Provided, That the amended provisions of Article 3-2, Articles 4 through 6, "Article
3-2 (1) or (2)" referred to in Article 7 (1), "Article 3-2 (1) or (2)" referred to in
Article 8, and Articles 14-2, 14-3 and 15 shall enter into force on the date when
the Free Trade Agreement Between the Republic of Korea and the European Union
and its Member States enters into force.
ADDENDA <No. 11963, 30. Jul, 2013>
This Act shall enter into force six months after the date of its promulgation.
ADDENDA <No. 13081, 28. Jan, 2015>
Article 1 (Enforcement Date)
This Act shall enter into force on the date of its promulgation: Provided, That the
amended provision of Article 9-2 (3) shall enter into force six months after the date
of its promulgation.
Article 2 (Applicability to Presumption of Possessing Information in Issuing Certificate of
Original Document)
The amended provision of Article 9-2 (3) shall apply, beginning with the first
issuance of a certificate of the original document after the amended provision enters
into force.
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ADDENDA <No. 13844, 27. Jan, 2016>
This Act shall enter into force on the date of its promulgation.
ADDENDA <No. 14033, 29. Feb, 2016>
Article 1 (Enforcement Date)
This Act shall enter into force six months after the date of its promulgation.
Articles 2 through 19 Omitted.
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