Editorial: S. Korean top court toughened punishment against tech theft, but “still not enough”

A former senior researcher at Samsung Electronics, who is suspected of leaking key semiconductor technology to China, leaves the court after a pretrial interrogation (examination of warrant) at the Seoul Central District Court in Seocho-gu, Seoul, on Jan. 16, 2024/Yonhap

The Sentencing Commission affiliated with the Supreme Court of South Korea has increased the maximum sentence for domestic tech leaks from six to nine years, and overseas leaks from nine to 15 years, with a maximum prison term of 18 years for thefts of state-designated key technologies. This marks the first instance where the top court has taken into account the opinions of multiple organizations, including the Federation of Korean Industries (FKI), which have argued that the prison sentences recommended for those convicted of leaking technologies are too lenient.

The new sentencing guidelines indeed raised the maximum sentence to 18 years, but this is only the upper limit for the sentencing range. In practice, offenders will be typically sentenced to around 10 years. In contrast to South Korea’s approach, other nations take a notably stern stance on industrial technology theft. Taiwan, for instance, enforces espionage laws on the same offense that could result in the death penalty. The United States imposes sentences of up to 33 years and nine months in prison, contingent upon the amount of damage caused. A South Korean employee accused of embezzling company funds worth 221.5 billion won (about $164.93 million) has received a 35-year prison sentence in the recent second trial. Similarly, a bank employee convicted of embezzling tens of billions of won from his bank got a 15-year prison term in the second instance. The act of stealing and leaking critical national technologies, which results in the loss of thousands of jobs and threatens the future of the country, cannot be considered any less significant than these embezzlement cases. Consequently, there’s a pressing need to elevate sentencing standards and enact legislative amendments where necessary.

Judges’ perceptions should also change. Of the 33 first-instance cases that went to trial for violations of the Act on Prevention of Divulgence and Protection of Industrial Technology in 2021, acquittals (60.6%) and suspended sentences (27.2%) accounted for 87.8% of the total. In 2022, the average sentence for trade secret misappropriation was just over a year. The excessive leniency in sentencing has made the number of industrial espionage cases rise continuously in South Korea. Those who attempt to smuggle key tech out of the country don’t take short-term sentences that seriously. Furthermore, South Korean judges often place people indicted for leaking core technologies on probation, judging that they are first-time offenders or that personal gain is not significant. However, those charged with stealing innovations are almost always first-time offenders, and the harm to the country must be considered before the gains from the crime. It is necessary to view this matter from the concept of economic security.