ENFORCEMENT DECREE OF THE ACT ON SUPPORT FOR PROTECTION OF TECHNOLOGIES OF SMALL AND MEDIUM ENTERPRISES
Presidential Decree No. 25737, Nov. 19, 2014
Amended by Presidential Decree No. 26844, Dec. 31, 2015
Presidential Decree No. 28106, jun. 13, 2017
Presidential Decree No. 28213, Jul. 26, 2017
Presidential Decree No. 29366, Dec. 11, 2018
CHAPTER I GENERAL PROVISIONS
| Article 2 (Consultation or Seeking Counsel) |
| (1) | Pursuant to Article 6 of the Act on Support for Protection of Technologies of Small and Medium Enterprises (hereinafter referred to as the "Act"), the Minister of SMEs and Startups may consult with or seek counsel from the heads of related central administrative agencies, the heads of intelligence and investigative agencies, related institutions or organizations, or experts with respect to the following matters: <Amended by Presidential Decree No. 28213, Jul. 26, 2017> |
| 1. | Matters concerning formulating and implementing a support plan to protect technologies of small and medium enterprises under Article 5 of the Act; |
| 2. | Matters concerning formulating and amending the guidelines for the methods, procedures, etc. necessary to prevent disclosure and to protect technologies, of small and medium enterprises (hereinafter referred to as "protection guidelines") under Article 8 of the Act; |
| 4. | Matters concerning resolving difficulties related to the protection of technologies of small and medium enterprises under Article 12 of the Act; |
| 5. | Other matters the Minister of SMEs and Startups deems necessary to formulate and promote policies to protect technologies of small and medium enterprises. |
| (2) | Consultation or seeking counsel under paragraph (1) shall be conducted by any of the following methods: <Amended by Presidential Decree No. 28213, Jul. 26, 2017> |
| 1. | Holding meetings of related persons; |
| 2. | Requesting the submission of a written opinion; |
| 4. | Other methods the Minister of SMEs and Startups deems appropriate to hold consultation or to seek counsel. |
| (3) | Civilian experts who have participated in the consultation or counselling under paragraph (1) may be paid allowances and travel expenses within budgetary limits. |
| Article 3 (Fact-Finding Surveys to Strengthen Capability to Protect Security of Technologies of Small and Medium Enterprises) |
| (1) | In order to conduct a fact-finding survey conducted pursuant to Article 7 (1) of the Act (hereafter referred to as "fact-finding survey" in this Article), the Minister of SMEs and Startups shall collect the opinion of the institutions and organizations related to small and medium enterprises and statistics experts, etc. and prepare a plan for conducting fact-finding surveys of small and medium enterprises every year. <Amended by Presidential Decree 28106, Jun. 13, 2017; Presidential Decree No. 28213, Jul. 26, 2017> |
| (2) | Deleted. <by Presidential Decree 28106, Jun. 13, 2017> |
| (3) | In conducting a fact-finding survey, the Minister of SMEs and Startups may perform a questionnaire survey in writing or utilizing an information and communications network, etc. or require surveyors to preform the survey by making visits in person. <Amended by Presidential Decree No. 28213, Jul. 26, 2017> |
| Article 4 (Establishment of Protection Guidelines) |
The protection guideline formulated by the Minister of SMEs and Startups under Article 8 of the Act shall include the following matters: <Amended by Presidential Decree No. 28213, Jul. 26, 2017> | 1. | Methods of diagnosing the protection level of technologies of small and medium enterprises; |
| 2. | Measures for the management and operation to prevent disclosure and protect technologies of small and medium enterprises; |
| 3. | Measures to cope with the prevention of disclosure and infringement of technologies of small and medium enterprises, and measures for restoration; |
| 4. | Measures for the management of, and security education for, technical personnel of small and medium enterprises. |
CHAPTER II PROTECTION OF TECHNOLOGIES OF SMALL AND MEDIUM ENTERPRISES AND SUPPORT PROJECTS FOR PROTECTION THEREOF
| Article 4-2 (Reporting on Act of Infringement of Technologies of Small and Medium Enterprises) |
| 1. | Name and address of the reporter; |
| 2. | Name or title of the reported person (including the name of its representative, in the case of a juristic person); |
| 3. | Act of infringement of technologies of small and medium enterprises and details of such damages. |
| (2) | Further details necessary for reporting such as forms of reporting under paragraph (1) shall be determined and publicly notified by the Minister of SMEs and Startups. |
[This Article Newly Inserted by Presidential Decree No. 29366, Dec. 11, 2018]
| Article 4-3 (Procedures for and Methods of Recommendation for Correction) |
| (1) | Where deemed necessary for the recommendation for correction under Article 8-3 (1) of the Act, the Minister of SMEs and Startups may receive opinions by seeking advices from attorneys-at-law, patent attorneys, scholars, persons engaging in relevant industries, other experts or institutions related to the protection of technologies about the result of the investigation conducted under Article 8-2 of the Act. |
| (2) | Where the procedures for conciliation or mediation of the Commission for Conciliation and Mediation of Disputes on Technologies of Small and Medium Enterprises under Article 23 of the Act are commenced, the Minister of SMEs and Startups shall suspend the procedures for recommendation for correction pursuant to Article 8-3 (2) of the Act; and where the procedures for conciliation or mediation are ended, he/she shall proceed the recommendation procedures in accordance with the following classifications, based on the result of conciliation or mediation: |
| 1. | Where the conciliation or mediation has been completed: The termination of the procedures for recommendation for correction; |
| 2. | Where the procedures for conciliation or mediation are terminated without the completion of the conciliation or mediation: Immediate resumption of the procedures for recommendation for correction. |
| (3) | The recommendation for correction under Article 8-3 (1) of the Act shall be written in a document clearly stating reasons for recommendation, matters to be recommended, and a period of correction, etc. |
| (4) | A person who receives the recommendation for correction under Article 8-3 (1) of the Act may inform the Minister of SMEs and Startups of the result of measures taken in accordance with the recommendation for correction. |
| (5) | Except as provided in paragraphs (1) through (4), matters necessary for the recommendation for correction shall be determined and publicly notified by the Minister of SMEs and Startups. |
[This Article Newly Inserted by Presidential Decree No. 29366, Dec. 11, 2018]
| Article 4-4 (Procedures and Methods of Publication) |
| (1) | Where the Minister of SMEs and Startups intends to make publication pursuant to Article 8-3 (3) of the Act, he/she shall verify whether the recommendation for correction is implemented and take into account the details and degree of the act of infringement of technologies of small and medium enterprises, the period of the act of infringement of technologies of small and medium enterprises, the scope and consequences of damage caused by such acts. |
| (2) | Where the Minister of SMEs and Startups deems it necessary for the recommendation for correction under Article 8-3 (3) of the Act, he/she may receive opinions by seeking advices from attorneys-at-law, patent attorneys, scholars, persons engaging in relevant industries, other experts or institutions related to the protection of technologies about the details and result of the recommendation for correction. |
| (3) | The Minister of SMEs and Startups shall inform the relevant person subject to publication of such fact and give him/her an opportunity to submit explanatory materials or to state his/her opinions before publication under Article 8-3 (3) of the Act. |
| (4) | Where the Minister of SMEs and Startups makes publication pursuant to Article 8-3 (3), he/she shall publish the following matters on the website of the Ministry or in general daily newspapers distributed nationwide pursuant to the Act on the Promotion of Newspapers: |
| 1. | Details of the act of infringement of technologies of small and medium enterprises; |
| 2. | A person who have conducted the act of infringement of technologies of small and medium enterprises; |
| 3. | Details and results of the recommendation for correction. |
| (5) | Except as provided in paragraphs (1) through (4), matters necessary for the publication shall be determined and publicly notified by the Minister of SMEs and Startups. |
[This Article Newly Inserted by Presidential Decree No. 29366, Dec. 11, 2018]
| Article 4-5 (Procedures for Hearing of Opinions) |
| (1) | Where the Minister of SMEs and Startups intends to hear opinions pursuant to Article 8-4 of the Act, he/she shall provide a written notice to the relevant parties, interested persons, or persons of reference of the recommendation for correction not later than 10 days prior to the date of scheduled hearing. |
| (2) | The relevant parties, interested persons, or persons of reference of the recommendation for correction who have received the notice under paragraph (1) may go to the designated place at the designated date and time, and state opinions or submit written statements. |
| (3) | When the relevant parties, interested persons, or persons of reference of the recommendation for correction have appeared and stated opinions pursuant to paragraph (2), the relevant public official shall prepare written gists and require those who have stated such opinions to verify, sign or affix their names and seals. |
[This Article Newly Inserted by Presidential Decree No. 29366, Dec. 11, 2018]
| Article 5 (Support for Utilization of Technical Data Bailment System) |
| 1. | Expanding a computerized data processing system and preparation of the management system; |
| 2. | Establishing a system of cooperation with related institutions, including financial institutions; |
| 3. | Supporting the trading and evaluation of technology related to technical data under bailment, with a high economical value for practical use; |
| 4. | Other matters that the Minister of SMEs and Startups deems necessary to support the utilization of the technical data bailment system by small and medium enterprises. |
CHAPTER III ESTABLISHING FOUNDATIONS FOR PROTECTION OF TECHNOLOGIES OF SMALL AND MEDIUM ENTERPRISES
| Article 6 (Designation of Institutions Exclusively in Charge of Technology Protection) |
| (1) | Pursuant to Article 14 (1) of the Act, the Minister of SMEs and Startups may designate an institution or organization that meets each of the following requirements as an institution or organization to be exclusively in charge of the affairs related to the support to protect technologies of small and medium enterprises (hereinafter referred to as "exclusive institution for technology protection"), among the institutions or organizations related to technology protection or support for small and medium enterprises: <Amended by Presidential Decree No. 28213, Jul. 26, 2017> |
| 1. | The business content of the relevant institution or organization shall include affairs related to technology protection or support for small and medium enterprises; |
| 2. | It shall establish an organizational department that exclusively performs the affairs prescribed in subparagraphs of Article 7 (1); |
| 3. | It shall have at least ten personnel to exclusively perform the affairs prescribed in subparagraphs of Article 7 (1); |
| 4. | It shall be equipped with an exclusive working space, and facilities and equipment necessary to perform the affairs prescribed in subparagraphs of Article 7 (1). |
| (2) | A person who wishes to be designated as an exclusive institution for technology protection shall submit an application for designation in the form determined and publicly notified by the Minister of SMEs and Startups to the Minister of SMEs and Startups, along with documents substantiating that he/she meets the requirements prescribed in subparagraphs of paragraph (1). <Amended by Presidential Decree No. 28213, Jul. 26, 2017> |
| (3) | Where the Minister of SMEs and Startups in receipt of documents under paragraph (2) deems that the applicant is qualified for designation as an exclusive institution for technology protection, he/she shall issue a certificate of designation in the form determined and publicly notified by the Minister of SMEs and Startups. In such cases, the Minister of SMEs and Startups shall announce the designation of an exclusive institution for technology protection without delay on the web-site of the Ministry of SMEs and Startups. <Amended by Presidential Decree No. 28213, Jul. 26, 2017> |
| (4) | Detailed criteria for exclusive personnel, working spaces, and facilities and equipment referred to in subparagraphs of paragraph (1) and other matters necessary for the designation of an exclusive institution for technology protection shall be determined and publicly notified by the Minister of SMEs and Startups. <Amended by Presidential Decree No. 28213, Jul. 26, 2017> |
| Article 7 (Operation of Exclusive Institution for Technology Protection) |
| (1) | An exclusive institution for technology protection shall perform the following affairs: <Amended by Presidential Decree No. 28213, Jul. 26, 2017> |
| 1. | Affairs to establish a foundation to protect technologies of small and medium enterprises; |
| 2. | Surveys and research for the formulation and implementation of measures to protect technologies of small and medium enterprises; |
| 3. | Affairs outsourced by the Minister of SMEs and Startups under Article 19; |
| 4. | Other matters that the Minister of SMEs and Startups deems necessary to support the protection of technologies of small and medium enterprises. |
| (2) | An exclusive institution for technology protection shall report its business plan for the relevant year and the performance outcomes of the previous year to the Minister of SMEs and Startups by no later than January 31 every year. <Amended by Presidential Decree No. 28213, Jul. 26, 2017> |
| (3) | Except as provided in paragraphs (1) and (2), matters necessary for the operation of an exclusive institution for technology protection shall be determined and publicly notified by the Minister of SMEs and Startups. <Amended by Presidential Decree No. 28213, Jul. 26, 2017> |
| Article 8 (Designation of Institutions for Training Professional Human Resources for Technology Protection) |
| (1) | Pursuant to Article 16 (2) of the Act, the Minister of SMEs and Startups may designate an institution or organization that meets each of the following requirements as an institution for training professional human resources for technology protection (hereinafter referred to as "institution for training professional human resources"), among universities, colleges, research institutes, or other institutions or organizations: <Amended by Presidential Decree No. 28213, Jul. 26, 2017> |
| 1. | It shall have formulated a plan to operate curricula adequate to train professional human resources for technology protection and to improve their quality; |
| 2. | It shall have formulated a plan to secure education personnel, including instructors necessary to deliver the curricula referred to in subparagraph 1; |
| 3. | It shall retain at least two personnel to exclusively conduct training of professional human resources for technology protection; |
| 4. | It shall be equipped with an exclusive space, facilities and equipment necessary to train professional human resources for technology protection. |
| (2) | A person who wishes to be designated as an institution for training professional human resources shall submit an application for designation in the form determined and publicly notified by the Minister of SMEs and Startups to the Minister of SMEs and Startups, along with a business plan for training professional human resources for technology protection and documents substantiating that he/she meets the requirements prescribed in subparagraphs of paragraph (1). <Amended by Presidential Decree No. 28213, Jul. 26, 2017> |
| (3) | Where the Minister of SMEs and Startups in receipt of documents under paragraph (2) deems that the applicant is qualified for designation as an institution for training professional human resources, he/she shall issue a certificate of designation in the form determined and publicly notified by the Minister of SMEs and Startups. In such cases, the Minister of SMEs and Startups shall announce such fact of designation of an institution for training of professional human resources without delay, on the web-site of the Ministry of SMEs and Startups. <Amended by Presidential Decree No. 28213, Jul. 26, 2017> |
| (4) | Detailed criteria for the curricula, educational personnel, and persons who exclusively conduct training, exclusive space, facilities and equipment, referred to in subparagraphs of paragraph (1), and other matters necessary for the designation and operation of an institution for training professional human resources shall be determined and publicly notified by the Minister of SMEs and Startups. <Amended by Presidential Decree No. 28213, Jul. 26, 2017> |
| Article 9 (Provision of Technology Protection Control Service) |
The technology protection control service provided by the Minister of SMEs and Startups to protect disclosure, etc. of technologies of small and medium enterprises pursuant to Article 18 (1) of the Act, shall include the following matters: <Amended by Presidential Decree No. 28213, Jul. 26, 2017> | 1. | Prediagnosis of technology protection level, security vulnerability, etc.; |
| 2. | Inspection on failure, etc. of networks and systems, and sharing of related information; |
| 3. | When any disclosure or infringement of technology occurs through an information and communications network, analysis of the cause thereof and provision of support to cope therewith; |
| 4. | Other matters that the Minister of SMEs and Startups deems necessary to protect technologies of small and medium enterprises and to restore them from infringement, such as the preventing disclosure of technologies through information and communications networks. |
| Article 10 (Support for Establishment of Security Systems) |
In order to support planning and establishment of a security system suitable for small and medium enterprises pursuant to Article 19 (1) of the Act, the Minister of SMEs and Startups may perform the following matters: <Amended by Presidential Decree No. 28213, Jul. 26, 2017> | 1. | Provision of subsidies to cover the expenses incurred in planning and establishing a security system; |
| 2. | Other matters that the Minister of SMEs and Startups deems necessary to support the planning and establishment of a security system suitable for small and medium enterprises. |
| Article 11 (Bounties for Protection of Technologies of Small and Medium Enterprises) |
| (1) | Where the Minister of SMEs and Startups intends to award a prize pursuant to Article 22 (1) of the Act to a person who has made a significant contribution to protecting technologies of small and medium enterprises, he/she shall receive recommendations from institutions related to small and medium enterprises or applications by public announcement. <Amended by Presidential Decree No. 28213, Jul. 26, 2017> |
| (2) | Upon receipt of recommendations or applications under paragraph (1), the Minister of SMEs and Startups shall verify the details thereof and determine whether to grant bounties, and shall notify his/her decision to the person who has made the recommendation (limited to cases where recommendations are received) and the person determined as an awardee of the prize. <Amended by Presidential Decree No. 28213, Jul. 26, 2017> |
| (3) | Except as provided in paragraphs (1) and (2), matters necessary for the procedures for recommendation and application for a person eligible for bounties, shall be determined and publicly notified by the Minister of SMEs and Startups. <Amended by Presidential Decree No. 28213, Jul. 26, 2017> |
CHAPTER IV CONCILIATION AND MEDIATION OF DISPUTES
| Article 12 (Composition and Operation of Commission for Conciliation and Mediation of Disputes on Technologies of Small and Medium Enterprises) |
| (1) | The chairperson of the Commission for Conciliation and Mediation of Disputes on Technologies of Small and Medium Enterprises (hereinafter referred to as the "chairperson"), to be established under the jurisdiction of the Minister of SMEs and Startups to conciliate and mediate disputes related to the protection of technologies of small and medium enterprises pursuant to Article 23 (1) of the Act (hereinafter referred to as the "Commission"), shall convoke and preside over Commission meetings. <Amended by Presidential Decree No. 28213, Jul. 26, 2017> |
| (2) | When the chairperson is unable to perform his/her duties due to any extenuating circumstance, a member in order predesignated by the chairperson, shall act on his/her behalf. |
| (3) | Where the chairperson intends to convoke a meeting, he/she shall notify the date, time, venue, and agenda items to each member in writing by no later than seven days before the meeting: Provided, That in urgent situations or in extenuating circumstances, he/she may notify such matters orally by no later than the day before holding the meeting. |
| (4) | Members who attend a meeting of the Commission may be paid allowances and reimbursed travel expenses, within budgetary limits: Provided, That the same shall not apply where a member who is a public official attends a Commission meeting directly in connection with his/her competent duties. |
| Article 12-2 (Removal or Dismissal of Members) |
The Minister of SMEs and Startups may remove or dismiss a member of the Commission from office, if any member of the Commission described in the subparagraphs of Article 23 (4) of the Act falls under any of the following cases: <Amended by Presidential Decree No. 28213, Jul. 26, 2017> | 1. | Where he/she becomes incapable of performing his/her duties due to a mental disorder; |
| 2. | Where he/she engages in misconduct in connection with any of his/her duties; |
| 3. | Where he/she is deemed unsuitable as a member due to neglect of duty, loss of dignity, or any other reason; |
| 4. | Where he/she expresses an intention to discontinue performing his/her duties. |
[This Article Newly Inserted by Presidential Decree No. 26844, Dec. 31, 2015]
| Article 13 (Composition and Operation of Conciliation Panel) |
| (1) | Within 15 days from receipt of a request for conciliation of a dispute under Article 25 (3) of the Act, the chairperson shall appoint the head of a conciliation panel referred to in Article 25 (1) of the Act (hereinafter referred to as "conciliation panel"). |
| (2) | A conciliation panel shall be comprised of at least three but not exceeding five members, including the head of the conciliation panel. |
| (3) | Members of a conciliation panel shall be appointed by the head of the conciliation panel from among members of the Commission. |
| (4) | No meeting of a conciliation panel shall be public: Provided, That in cases falling under Article 27 (2) of the Act, the parties to the case or persons of reference may be allowed to observe the meetings. |
| Article 14 (Composition and Operation of Mediation Panel) |
| (1) | Within 20 days from the date the method of selecting a mediation panel is determined under Article 26 (5) of the Act, the chairperson shall organize a mediation panel referred to in Article 26 (1) of the Act (hereinafter referred to as "mediation panel"). In this regard, where it is agreed to select a mediation panel in accordance with the method prescribed in Article 26 (5) 2 of the Act (including where agreement is deemed reached in accordance with the proviso to the same paragraph), multiple number of mediation panel shall be formed. |
| (2) | A mediation panel shall be comprised of not less than three nor more than five members of the Commission, including the head of the mediation panel. |
| (3) | Meetings of a mediation panel shall not be disclosed: Provided, That in cases falling under Article 27 (2) of the Act, the parties to the case or persons of reference may be allowed to observe the meetings. |
| Article 15 (Hearing Opinions of Parties to Case or Persons of Reference) |
| (1) | Where a conciliation panel or mediation panel intends to hear opinions of parties to the case or persons of reference under Article 27 (2) of the Act, it shall notify in writing the date, time, venue, and grounds for requesting their opinions to the parties to the case or the persons of reference, by no later than seven days before holding the meeting. |
| (2) | Where a person in receipt of a notification under paragraph (1) is unable to attend the meeting of the conciliation panel or mediation panel due to any inevitable reason, the head of the conciliation panel or the head of the mediation panel may require him/her to submit his/her opinion in writing. |
| Article 16 (Sharing of Expenses for Conciliation or Mediation) |
Where the Commission intends to make the expenses for conciliation or mediation shared under Article 28 (1) of the Act, it shall hear the opinions of the parties to the case as to the methods of sharing expenses, including the principal person to bear the expenses and the share ratio.
| Article 17 (Detailed Rules of Operation) |
Except as provided in this Decree, matters necessary for the composition and operation of a conciliation panel and a mediation panel shall be determined and publicly notified by the Minister of SMEs and Startups. <Amended by Presidential Decree No. 28213, Jul. 26, 2017>
| Article 18 (Encouragement of Utilization of Conciliation and Mediation) |
In order to promote conciliation referred to in Article 25 of the Act and mediation referred to in Article 26 of the Act, the Minister of SMEs and Startups may encourage small and medium enterprises to utilize conciliation and mediation in dealing with disputes related to the protection of technologies of small and medium enterprises. <Amended by Presidential Decree No. 28213, Jul. 26, 2017>
CHAPTER V SUPPLEMENTARY PROVISIONS
| Article 19 (Delegation or Entrustment of Authority) |
| (1) | Pursuant to Article 31 (2) of the Act, the Minister of SMEs and Startups shall outsource the following affairs to an exclusive institution for technology protection: <Amended by Presidential Decree No. 28213, Jul. 26, 2017> |
| 2. | Affairs related to surveys and research for the formulation of protection guidelines under Article 8 of the Act; |
| 3. | Affairs related to the support for utilization of a technical data bailment system under Article 9 of the Act; |
| 4. | Affairs related to researching systems related to presenting opinions and recommendation for improvement under Article 11 of the Act; |
| 5. | Affairs related to diagnosing, and counselling on, etc. the protection of technologies of small and medium enterprises under Article 12 (1) of the Act; |
| 6. | Affairs related to the protection of technologies of small and medium enterprises expanding their business abroad under Article 13 (1) of the Act; |
| 7. | Affairs related to the management of institutions for training professional human resources under Article 16 (2) of the Act; |
| 8. | Affairs related to public relations and education on the protection of technologies of small and medium enterprises under Article 17 of the Act; |
| 9. | Affairs related to the support for establishment of an international cooperation system under Article 20 of the Act. |
| 1. | Affairs related to facilitating and disseminating the development of security technologies under Article 15 (1) of the Act; |
| (3) | Where the Minister of SMEs and Startups outsources affairs pursuant to paragraph (2), he/she shall publicly notify the name of the outsourced institution, its representative and location, and details of affairs outsourced. <Amended by Presidential Decree No. 28213, Jul. 26, 2017> |
CHAPTER VI PENALTY PROVISIONS
| Article 20 (Standards for Imposing Administrative Fines) |
The standards for imposing administrative fines pursuant to Article 35 (1) of the Act shall be as specified in the attached Table. [This Article Newly Inserted on Dec. 11, 2018]
ADDENDUM
This Decree shall enter into force on November 29, 2014.
ADDENDUM <Presidential Decree No. 26844, Dec. 31, 2015>
This Decree shall enter into force on the date of its promulgation.
ADDENDUM <Presidential Decree No. 28106, Jun. 13, 2017>
This Decree shall enter into force on the date of its promulgation.
ADDENDA <Presidential Decree No. 28213, Jul. 26, 2017>
Article 1 (Enforcement Date)
This Decree shall enter into force on the date of its promulgation.
Articles 2 through 6 Omitted.
ADDENDUM <Presidential Decree No. 29366, Dec. 11, 2018>
This Decree shall enter into force on December 13, 2018.