Reviewing measures to expand the participation rights of victims of trade secret infringement cases in the criminal trial procedure
Authors:   The Korean Association of Criminal Procedure Law, Choi Sungkyum 
Published: August 2023

The protection of trade secrets is not only beneficial to individual businesses, but also directly linked to the interests of the nation and society as a whole. Therefore, prosecutors responsible for maintaining public prosecution in cases of trade secret infringement have a heavy duty to lead guilty verdicts and appropriate sentencing based on a deep understanding of the technical details of the trade secret in question. With the advent of the Fourth Industrial Revolution, the types and technical complexities of trade secrets have been rapidly increasing. In this context, the victim is often the person who possesses the deepest understanding of the technical details of the trade secret in question. Therefore, expanding the participation of victims in the trial process of trade secret infringement cases is not only crucial for maintaining public prosecution in individual cases but also serves as a significant task in the realm of safeguarding public interest. In this article, we intend to examine various measures to expand the participation rights of victims in the criminal trial process of trade secret infringement cases. This topic shares several points with the broader issue of expanding the participation of victims in general criminal cases, and we will explore them together. Firstly, various actions such as victims engaging in interviews with prosecutors or submitting materials to prosecutors outside of the court are legally sound and justified when examined from multiple perspectives, including the “permissibility and scope of investigation after indictment” and “allowance of pre-trial witness interviews with prosecutors.” In particular, the exchange of opinions and information between prosecutors and victims regarding technical aspects is crucial for the proper prosecution of trade secret infringement cases. Moving on to the possibilities for criminal victims to participate in the procedures in court, generally, victims have the right to express their opinions and make statements based on the Constitution, as well as specified in the Criminal Procedure Act and Criminal Procedure Rules. For certain crimes such as sexual violence offenses, there are separate provisions in the law that ensure the right of victim's counsel to express their opinions and make statements. In relation to this, the author believes that it is possible, based on the interpretation of current laws and regulations, to recognize the legal right of victim's counsel to express their opinions and make statements in court regarding general criminal cases including trade secret infringement cases. Furthermore, the author believes that such recognition is necessary. The basis for this argument is that, firstly, allowing victim's counsel to express their opinions and make statements is the most effective means to adequately protect the victim's right to present their views in court. Secondly, the principle against analogy takes a significantly relaxed attitude towards procedural law. Moreover, there is a precedent where the provisions of criminal procedure law regarding defendants have been analogously applied to defense counsel. Thirdly, the Criminal Procedure Rules include provisions that assume the possibility of all crime victim's counsel expressing their opinions and making statements in court. Fourthly, there is no reason to distinguish between trade secret infringement cases and other cases such as sexual violence offenses when considering the necessity of guaranteeing the right of victim's counsel to express their opinions and make statements. Fifthly, by challenging the credibility of the opinions expressed by victim's counsel in court, the defendant's side may have an opportunity for additional defense. Sixthly, the scope of rights held by victim's counsel in court after prosecution should be balanced with the scope of rights held by victim's counsel during the pre-prosecution investigation stage.