하도급법상 기술자료 보호에 관한 연구

Abstract

The Article 12-3 of the Subcontracting Fairness Act(Subcontracting Act) was introduced through the amendment to prevent the theft of technical data of a subcontractor in an inferior position 2010, but there have been few cases of its application. In this situation, the KFTC's decision in the Samsung SDI case is a meaningful precedent for the interpretation and application of this regulation. In the case, the KFTC determined that the acts of failing to provide prior consultation and prior written issuance when requesting a source of authorization for the use of technology, failing to provide prior written issuance when requesting facility production drawings, and providing facility production drawings issued by the subcontractor to a third party violated Article 12-3 (2) and (4) of the Subcontracting Act. The KFTC took the position that the technical data in question corresponded to the technical data protected by the Subcontracting Act, that a written delivery that comprehensively and abstractly stated statutory matters could not be considered a legitimate written delivery, and that the technical data of the subcontractor could not be interpreted as limited to the technical data owned by the subcontractor, and that this judgment was in line with the legislative purpose of Article 12-3 of the Subcontracting Act to protect the technology of the subcontractor in subcontracting transactions. Although the KFTC's conclusion seems reasonable, some arguments could be added to support it. In particular, with regard to understanding the technical data of the subcontractor, the unique significance of the subcontracting law in the overall legal order with regard to the protection of the subcontractor's technology, the enhancement of effective regulation of the situation where the infringement of the subcontractor's technology occurs indirectly, and the comprehensive understanding of the relevant regulations under the subcontracting law can be used as arguments for identifying the technical data of the subcontractor as the technical data held by the subcontractor.