[비즈한국] Companies sometimes make decisions that are difficult to explain by money alone. Understanding the laws and systems hidden within them can provide a deeper insight into the inner workings. ‘Useful Business Tips (Al-Sseul-Bi-Beop)’ introduces clues that help understand business trends.
What is the best way to complete tasks quickly and with high quality? While there are many ways, one is to not do everything yourself but to take what others have done. I have had a similar experience. There was someone who could complete tasks surprisingly quickly and with good quality, even when they clearly lacked the time and resources. At first, I thought they had extraordinary abilities, but I later felt a sense of disillusionment upon realizing that they had simply gathered and organized work already done by others.
Distributing work to many people, managing schedules, and gathering and organizing the results are also skills, so people who work this way can also be praised as being "good at their job." However, there are sometimes criticisms. Comments like "they stole someone else's work" or "they hide others' efforts and act as if they did everything themselves" often arise.
This situation does not just occur within workplaces or departments. It frequently happens in situations where information is requested under the guise of trade or contracts. For example, a project owner may ask a candidate to provide materials such as a proposal while inviting them to participate in a bid, or a primary consortium contractor may ask a subcontractor candidate to provide technical data. In this process, the owner and others use the provided materials for the project, but they offer no compensation to the candidate, citing reasons such as "you failed the bid" or "the plans changed suddenly."
This also happens quite often in the legal profession. For example, law firms may be asked for detailed engagement proposals under the pretext of selecting a consultant. The information gathered through this process is then used to respond to legal disputes. A problem arises here when, without the author's consent, the engagement proposal of one firm is shared with a consultant for another firm.
In fact, this is mild. Sometimes, they receive a pile of proposals from multiple places but never actually select a consultant. In such cases, the requester makes excuses like "the project was suddenly canceled," but it is difficult to shake the suspicion that they were "fishing" to collect information.
Such behavior is worthy of criticism from both a common sense and moral standpoint. While it might seem easy to hold them legally responsible at first glance, surprisingly, it has been very difficult to take legal action until quite recently. The reason is that providing information is merely sharing an idea, and since a contract has not yet been signed, it is difficult to claim breach of contract.
However, the Unfair Competition Prevention Act has recently been amended, and cases have emerged where courts have actively applied it and rendered judgments. Signs of change are also appearing in the area of the Subcontracting Act, with instances where the Fair Trade Commission has sanctioned the misappropriation of technical data.
Article 2, Subparagraph 1 (ka) of the Unfair Competition Prevention Act defines "unfair competition" as "the act of using, for one's own or a third party's business interests, or providing to others for their use, information containing another person's technical or business ideas that have economic value, in violation of the purpose for which it was provided during the course of trade negotiations or transactions, such as business proposals or bidding processes" (hereinafter referred to as "idea theft"). However, according to the proviso, "cases where the person receiving the idea already knew the idea at the time of receipt or where the idea was widely known in the industry" are excluded from acts of unfair competition.
Compared to the existing system, this clause has the following significance. First, it is a provision that protects "ideas," which have been discussed for a long time but were considered insufficiently protected legally.
Copyright law protects the "form" of expression, not the idea itself. Therefore, it is difficult to get copyright infringement recognized for imitating concepts and styles. Patent law protects patent rights that have completed registration with the Korean Intellectual Property Office, so if a patent has not been registered, it cannot be relied upon in the first place. In this respect, the clause is significant as it expands the scope of protection to include ideas.
Second, this clause is significant in that it allows for legal protection even when an idea is provided "before signing a contract."
Before a contract is signed, it is generally difficult to be protected by contract law. While it is exceptionally possible to receive protection for matters occurring in the pre-contract stage under the concept of "culpa in contrahendo" (pre-contractual liability), the requirements are strict and the scope of protection is narrow. However, as this clause protects the provision of information during trade negotiations or transactions, it is not restricted by the signing of a contract and offers protection in all business relationships.
Since the introduction of this clause in 2018, court rulings applying it have been emerging. In the Seoul High Court ruling 2019Na2031649, the court recognized an act of idea theft in a case where a chicken franchise company commissioned an advertising agency for product naming and then unilaterally terminated the contract citing reasons such as the expiration of the term, after which they continued to use the agency's advertising materials. In that ruling, the court ordered the chicken franchise company to destroy the advertising materials and pay damages.
The Subcontracting Act, amended in 2022, added Article 12-3, which stipulates that, in principle, a prime contractor cannot demand technical data from a subcontractor unless they can prove a legitimate reason. It also mandates that when technical data is provided, a technical data request form must be issued in advance and a non-disclosure agreement must be signed.
This provision, known as the "prohibition on misappropriation of technical data," applies only to subcontracting transactions. However, as the prime contractor has an obligation not to misappropriate the subcontractor's technical data even after the subcontracting transaction ends, it can be seen as significantly expanding the protection period and scope for technical data.
If a large company receives manufacturing process diagrams and work manuals from a parts supplier in the name of quality assurance, and then provides them to another supplier and instructs them to mass-produce the parts, this is a typical act of technical data misappropriation (infringement). Even if the system is refined and new clauses are created, it is realistically not easy for a subcontractor to raise issues about data misappropriation to a prime contractor, or for a supplier to do so to an original contractor. That is why acts of idea theft and technical data misappropriation are still happening frequently.
However, we cannot overlook this problem. Once a clause is introduced in Korea, cases applying that clause will continue to arise, and should an investigation or trial proceed, the resulting responsibility is not light. Therefore, both the party giving information and the party receiving it must comply with procedures to ensure that liability issues do not arise. What is needed is an attitude that recognizes the due share that the information holder (provider) is entitled to.