Crimes Related to Intellectual Property

Home > Sentencing Guidelines > Crimes Related to Intellectual Property
Promulgated on June 18, 2012, Effective on July 1, 2012


  1. 1. REGISTERED RIGHTS INFRINGEMENTS
지식재산권범죄 양형기준
Classification Mitigated Sentencing Range Standard Sentencing Range Aggravated Sentencing Range
Act of Infringing Registered Rights - 1 yr 10 months - 2 yrs 1 yr 6 months - 3 yrs

This includes the conducts of infringing a patent rightㆍexclusive license, utility model rightㆍexclusive license, design rightㆍexclusive license, trademark rightㆍexclusive license.

지식재산권범죄 양형기준
Classification Mitigating Factor Aggravating Factor
Special Sentencing Determinant Conduct
  • Actual Loss is Insignificant
  • Special Consideration Can Be Taken Into Account for Engaging or Participating in the Offense
  • Non-Distribution of Infringed Goods
  • PremeditatedㆍOrganized Crime
  • Deception Against Multiple Victims or Using Active Means of Deception
  • Continuous Act of Infringement After the Demand to Cease While Apparent Infringement Takes Place
Actor/Etc.
  • Those with Hearing and Visual Impairments
  • Those with Mental Incapacity (Cases Where the Offender Cannot be Held Liable)
  • Voluntary Surrender to Investigative Agencies
  • The Victim Opposes Punishment (Including Genuine Efforts to Reverse Harm)
  • Repeated Offenses of the Same Type Under the Criminal Act
  • More Than Three Incidents of Criminal History of the Same Type
General Sentencing Determinant Conduct
  • Passive Participation
  • Offense Committed for Basic Living Expenses
  • Repeated or Prolonged Commission of the Offense
  • Inflicting Serious Harm
Actor/Etc.
  • Expresses Sincere Remorse
  • Efforts to Reverse Harm (Significant Amount of Money Deposited, Etc.)
  • No Prior Criminal History
  • Criminal History of the Same Type (This Applies When the Criminal History is Within Ten Years After the Completion of the Sentence)
  1. 2. COPYRIGHT INFRINGEMENTS
지식재산권범죄 양형기준
Type Classification Mitigated Sentencing Range Standard Sentencing Range Aggravated Sentencing Range
1 Act of Infringing Author’s Property Right - 10 months 8 months - 1 yr 6 months 1 yr - 3 yrs
2 Act of Infringing Other Rights Related to Copyright - 8 months 6 months - 1 yr 4 months 10 months - 2 yrs

Type 2 includes act of infringing author’s moral right, filing a deceitful registration, infringing the right of a database producer, disturbing the exercise of copyright, performing an act deemed an infringement.

지식재산권범죄 양형기준
Classification Mitigating Factor Aggravating Factor
Special Sentencing Determinant Conduct
  • Actual Loss is Insignificant
  • Special Consideration Can Be Taken Into Account for Engaging or Participating in the Offense
  • Not-for-Profit Use
  • Premeditated·Organized Crime
  • Inflicting Serious Harm to the Holder of a Right
  • Continuous Act of Infringement After the Demand to Cease While Apparent Infringement Takes Place
Actor/Etc.
  • Those with Hearing and Visual Impairments
  • Those with Mental Incapacity (Cases Where the Offender Cannot be Held Liable)
  • Voluntary Surrender to Investigative Agencies
  • The Victim Opposes Punishment (Including Genuine Efforts to Reverse Harm)
  • Repeated Offenses of the Same Type Under the Criminal Act
  • More Than Three Incidents of Criminal History of the Same Type
General Sentencing Determinant Conduct
  • Passive Participation
  • Offense Committed for Basic Living Expenses
  • Repeated or Prolonged Commission of the Offense
  • Inflicting Serious Harm
  • Infringement of a Registered Right
Actor/Etc.
  • Expresses Sincere Remorse
  • Efforts to Reverse Harm (Significant Amount of Money Deposited, Etc.)
  • No Prior Criminal History
  • Criminal History of the Same Type (This Applies When the Criminal History is Within Ten Years After the Completion of the Sentence)
  1. 3. TRADE SECRET INFRINGEMENTS
지식재산권범죄 양형기준
Type Classification Mitigated Sentencing Range Standard Sentencing Range Aggravated Sentencing Range
1 Infringement Within the Country - 10 months 8 months - 1 yr 6 months 1 yr - 3 yrs
2 Infringement Outside of the Country 10 months - 1 yr 6 months 1 yr - 3 yrs 2 yrs - 5 yrs
지식재산권범죄 양형기준
Classification Mitigating Factor Aggravating Factor
Special Sentencing Determinant Conduct
  • Actual Loss is Insignificant
  • Special Consideration Can Be Taken Into Account for Engaging or Participating in the Offense
  • Disclosure Did Not Occur Externally and Was Recovered
  • PremeditatedㆍOrganized Crime
  • Inflicting Serious Harm to the Holder of a Right
  • Offenses Regarding the Trade Secrets Have Significant Effect Nationally and Socially
Actor/Etc.
  • Those with Hearing and Visual Impairments
  • Those with Mental Incapacity (Cases Where the Offender Cannot be Held Liable)
  • Voluntary Surrender to Investigative Agencies
  • The Victim Opposes Punishment (Including Genuine Efforts to Reverse Harm)
  • Repeated Offenses of the Same Type Under the Criminal Act
  • Offense Committed by a Person With Special Duties to Maintain Confidentiality
General Sentencing Determinant Conduct
  • Passive Participation
  • Negligence in Supervising the Trade Secrets
  • Actual Use of Disclosed Trade Secrets
  • Extent of Damage is Significant
  • Disclosure of Trade Secrets That Was Acquired or Used
  • Economic Profits Gained From Offense
Actor/Etc.
  • Expresses Sincere Remorse
  • Efforts to Reverse Harm
  • No Prior Criminal History
  • Criminal History of the Same Type (This Applies When the Criminal History is Within Ten Years After the Completion of the Sentence)
  1. 4. COMMISSION OF UNFAIR COMPETITION
지식재산권범죄 양형기준
Classification Mitigated Sentencing Range Standard Sentencing Range Aggravated Sentencing Range
Act of Unfair Competition - 8 months 6 months - 1 yr 4 months 10 months - 2 yrs
지식재산권범죄 양형기준
Classification Mitigating Factor Aggravating Factor
Special Sentencing Determinant Conduct
  • Actual Loss is Insignificant
  • Special Consideration Can Be Taken Into Account for Engaging or Participating in the Offense
  • PremeditatedㆍOrganized Crime
  • Inflicting Serious Harm to the Victim
  • Deception Against Multiple Victims or Using Active Means of Deception
  • Continuous Act of Infringement After the Demand to Cease While Apparent Infringement Takes Place
Actor/Etc.
  • Those with Hearing and Visual Impairments
  • Those with Mental Incapacity (Cases Where the Offender Cannot be Held Liable)
  • Voluntary Surrender to Investigative Agencies
  • The Victim Opposes Punishment (Including Genuine Efforts to Reverse Harm)
  • Repeated Offenses of the Same Type Under the Criminal Act
General Sentencing Determinant Conduct
  • Passive Participation
  • Offense Committed for Basic Living Expenses
  • Repeated or Prolonged Commission of the Offense
  • Extent of Damage is Significant
Actor/Etc.
  • Expresses Sincere Remorse
  • Efforts to Reverse Harm
  • No Prior Criminal History
  • Criminal History of the Same Type (This Applies When the Criminal History is Within Ten Years After the Completion of the Sentence)
  1. 1. REGISTERED RIGHTS INFRINGEMENTS
    • This includes offenses with the following statutory elements of offense under the applicable laws (applies to all offenses).
지식재산권범죄양형기준
Elements of the Offense Applicable Law
Act of Infringing Patent Right ㆍ
Exclusive License
Patent Act, Article 225, paragraph 1
Act of Infringing Utility Model RightㆍExclusive License Utility Model Act, Article 45, paragraph 1
Act of Infringing Design RightㆍExclusive License Design Protection Act, Article 82, paragraph 1
Act of Infringing Trademark RightㆍExclusive License Trademark Act, Article 93
  1. 2. COPYRIGHT INFRINGEMENTS
지식재산권범죄양형기준
Type Elements of the Offense Applicable Law
1 Act of Infringing Patent RightㆍExclusive License
Act of Infringing Author's
Property Right and Other Property Rights (Except Rights Under Article 93) Protected by This Statute
Copyright Act, Article 136, paragraph 1
2 1. Act of Infringing Author's Moral Right
2. Filing a Deceitful Registration
3. Act of Infringing the Right of a Database Producer (Article 93)
3-1. Act of Incapacitating Technical Protection for Business or Profit
3-2. Act of Deleting Rights Management Information for Business or Profit
4. Person Who Performs an Act Deemed as an Infringement
Copyright Act, Article 136, paragraph 2
  1. 3. TRADE SECRET INFRINGEMENTS
지식재산권범죄양형기준
Type Elements of the Offense Applicable Law
1 AcquiringㆍUsing or Leaking Useful Trade Secrets of Any Enterprise for the Purpose of Making an Illegal Profit or Causing Damage to the Enterprise Unfair Competition Prevention Act, Article 18, paragraph 2
Act of Divulging and Infringing Industrial Technology The Act on Prevention of Divulgence and Protection of Industrial Technology, Article 36, paragraph 2
Act of Divulging or Making Fraudulent Use of Secrets Learned While Conducting Duties The Act on Prevention of Divulgence and Protection of Industrial Technology, Article 36, paragraph 5
2 Using Useful Trade Secrets of Any Enterprise Abroad for the Purpose of Making an Illegal Profit or Causing Damage To Such Enterprise or Acquiring, Using, or Leaking Such Trade Secrets To Any Third Party With Knowing That They Are Used or Will Be Used Overseas Unfair Competition Prevention Act, Article 18, paragraph 1
Divulging and Infringing Industrial Technology for The Purpose of Using It Overseas The Act on Prevention of Divulgence and Protection of Industrial Technology, Article 36, paragraph 1
  1. 4. REGISTERED RIGHTS INFRINGEMENTS
지식재산권범죄양형기준
Elements of the Offense Applicable Law
Person Who Commits an Unfair Competition Act Under Subparagraph of Article 2 (Excluding Items (h) and (i)) Unfair Competition Prevention Act, Article 18, paragraph 3, subparagraph 1
Act of Using Trademark, Contrary to Article 3, An Identical or Similar Badge Or Mark of a Party in Violation to the Paris Convention Unfair Competition Prevention Act, Article 18, paragraph 3, subparagraph 2
    • 1. ACTUAL LOSS IS INSIGNIFICANT
    • This means one or more of the following factors apply:
      • When the holder of a right did not actually use the right concerned, trade secrets or industrial technology (except when the right is in use or it is a foundational aspect of the secret for developing trade secretsㆍindustrial technology)
      • When the infringed right, trade secrets or industrial technology is used in merely one process of the productㆍservice so that offender could produce products or services using other alternative technology even without the right or trade secrets and the decline in sales by the offense is insignificant as a result.
      • When the infringement involves only a small portion of the object of copyright, or other rights.
      • Other cases with comparable factors.

    • 2. SPECIAL CONSIDERATION CAN BE TAKEN INTO ACCOUNT FOR ENGAGING IN OFFENSE
    • This means one or more of the following factors apply:
      • Participation in the crime was forced by another person or as a result from threats (This excludes cases where Criminal Act, Article 12 is applicable);
      • When the offender merely agreed to participate in the crime but did not lead or actually participate in the commission of the crime.
      • When the offender used the work protected by copyright to help cultural life of the children, disabled, or senior citizen.
      • Other cases with comparable factors.

    • 3. NON-DISTRIBUTION OF GOODS
    • The whole products made from infringing rights, trade secrets, or industrial technology are not transferred or possessed by the third party but are still under the offender’s control.

    • 4. VICTIM OPPOSES PUNISHMENT (THIS INCLUDES GENUINE EFFORTS TO REVERSE HARM)
    • This means cases where the offender expresses signs of remorse and the member of the deceased victim or the victim acknowledges this and objects punishing the offender.
    • This includes cases where deposits are made on a considerable amount of money comparable to reaching of an agreement with the family of the deceased victim or the victim as a result of the offender's genuine efforts to reverse harm.

    • 5. PREMEDITATEDㆍORGANIZED CRIME
    • This means cases with one or more of the following factors:
      • Means and methods for the commission of the offense were meticulously done in-advance.
      • Multiple persons involved in an organized manner for the purpose of committing the offense.
      • Other cases with comparable factors.

    • 6. DECEPTION AGAINST MULTIPLE VICTIMS OR USING ACTIVE MEANS OF DECEPTION
    • This means cases where the offender deceived consumers and caused confusion in the market by using pictures of authentic goods in advertisements, or by displaying counterfeit goods together with authentic ones.

    • 7. INFLICTING SERIOUS HARM TO THE HOLDER OF THE RIGHT
    • This means one or more of the following factors apply:
      • The proportion of profit gained from the act of infringementㆍunfair competition constitutes most part of the total sales of the offender, or considerable part of the total sales of the holder of a right.
      • The offender established corporation or place of business solely for the purpose of infringing specific right.
      • The business of holder of a right faced bankruptcy crisis or fatal financial problems due to serious decline in sales.
      • The offender infringed trademark rights with substantial recognition of the trademark in the marketplace.
      • The offender infringed patent right which became the basis of specific industry area, or which brought innovative advance in special field
      • Other cases with comparable factors.

    • 8. DISCLOSURE DID NOT OCCUR EXTERNALLY AND WAS RECOVERED
    • This means cases where the offender did not disclose the trade secret or industrial technology that was gained, which caused relatively low risk of harm to the holder of a right.

    • 9. OFFENSE COMMITTED BY A PERSON WITH SPECIAL DUTIES TO MAINTAIN CONFIDENTIALITY
    • This means cases when the offender is the person prescribed in the Industrial Technology Act, Article 34, or is a person who is not employed to the holder of a right but received considerable price for developing the technology by participating as a subcontractor, or when the offender promised not to use the industrial technology or trade secrets that was transferred to the current holder of a right, but instead disclosed or used them.
  1. 1. DETERMINING APPROPRIATE SENTENCING RANGE
    • In determining the appropriate sentencing range, the judge must only consider the special sentencing determinants.
    • However, in cases involving more than two special sentencing determinant, the applicable sentencing range is adjusted after assessing the factors as set forth below:
      1. ①  The same number of conduct factor shall be considered with greater significance than the actor/etc. factor. However, this shall be assessed equally to the victim or the family member of the deceased victim’s objection to the punishment
      2. ②  Each factor within the relevant categories of conduct or actor/etc. factors should be treated as equal.
      3. ③  If the applicable sentencing range is unable to be determined by the aforementioned principles ①, ②, the judge is to decide the applicable sentencing range through a comprehensive comparison and assessment based on the principles set forth in ①, ②.
    • It is recommended that when the assessment reveals greater aggravating factors to select the aggravated zone, the mitigating factors is greater to select the mitigating zone, and the same number of aggravating factors and mitigating factors to select the standard zone as a sentencing range.
  2. 2. DETERMINING THE APPLICABLE SENTENCE
    • The judge should select the proper point within the sentencing range as assessed in accordance with the above principles, along with the special sentencing determinant and general sentencing determinant taken together.
    • When the maximum of the sentencing range exceeds twenty-five years, the judge may impose a life imprisonment.
  1. 1. SPECIAL ADJUSTMENTS TO THE SENTENCING RANGE
      1. ①  In cases where the aggravating factor is selected and the assessment of the special sentencing determinant reveals only two or more special aggravating factors or the special sentencing determinant outnumbers the special mitigating determinant by two or more, then the sentencing range should be increased up to 1/2 from the maximum level.
      2. ②  For cases where the mitigating factor is selected as a result of assessment of the special sentencing determinant, and there are two or more special mitigating determinant or the special mitigating determinant outnumbers the special aggravating determinant by two or more, the sentencing range should be decreased up to 1/2 from the minimum level.
  2. 2. RELATION BETWEEN THE RECOMMENDED SENTENCING RANGE GUIDELINES AND APPLICABLE SENTENCING RANGE BY LAW
    • When the sentencing range under this guideline conflicts with the range drawn in accordance with the aggravation and mitigation of applicable law, the sentencing range prescribed by applicable law governs.
  3. 3. APPLICATION OF STATUTORY MITIGATING FACTORS AS DISCRETIONARY
    • When the judge declines to apply the optional mitigation factor under the applicable law as listed in the sentencing table of this guideline, this shall be considered as the discretion for mitigation.
  1. 1. APPLICABLE SCOPE
    • This part on multi-count convictions applies to concurrent crimes prescribed in the first part of Article 37 of the Criminal Act as set forth in this sentencing guideline. However, in cases of this article’s concurrent crimes where offenses that fall within and outside of the sentencing guidelines are involved, the minimum level should be the minimum of the sentencing range of the offense that is set forth in this sentencing guideline.
  2. 2. DETERMINING BASE OFFENSE
    • The “base offense” means the most severe offense that results after the selection of penalty and statutory aggravation and mitigation as prescribed in Criminal Act, Article 50. However, in cases where the maximum sentencing range is lower than that of the maximum sentencing range of the other counts as provided in this guideline, then such other count becomes the base offense.
  3. 3. CALCULATING SENTENCING RANGE
    • For purposes of calculating sentencing range for multi-count conviction cases with the different offense, the judge shall apply the following principles unless the offenses are deemed as a single offense under the sentencing guideline:
      1. ①  In setting sentencing range for an offender convicted of two counts, the sentencing range should be the total sum of the maximum sentencing range of the base offense and the 1/2 of the maximum sentencing range of the second count.
      2. ②  In setting sentencing range for an offender convicted of three or more counts, the sentencing range should be the total sum of the following: (1) maximum sentencing range of the base offense, (2) 1/2 of the maximum sentencing range of the count with the highest sentencing range, and (3) 1/3 of the maximum sentencing range of the remaining count with the second highest sentencing range.
      3. ③  For cases where the minimum sentencing range of the other count is higher than that of the base offense, the minimum sentencing range resulting from the multi-count offense should be the minimum sentencing range of the other count.
    • However, when the multi-count conviction is composed of two or more offense of extortion and other different offenses, first set the sentencing range for multi-count conviction of the same offense and then use the resulted point range to calculate the sentencing range for multi-count conviction with different offenses.

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