我國無形技術外流管控制度之檢討

我國地域雖小，但因製程及研發技術精良，在世界高科技產業各供應鏈仍有一席之地，此等技術大部分雖作商業用途，但部分技術同時具有國家經濟、軍事國防上之重要意義，通常也被稱為敏感科技。因中國大陸科技產業逐步崛起，積極以「紅色供應鏈」擬取代我國廠商地位，近年常發生中國大陸公司不法竊取我國廠商高科技研發成果或敏感科技之事件。在此氛圍之下，確保我國廠商高科技技術或敏感科技不外流，為刻不容緩之議題，惟我國針對無形技術之管控尚無具體法律制度，有建立體制之迫切必要。本文在盤點我國防範外國，特別是中國大陸竊取科技相關產業技術及人才挖角之法規進行盤點，並就美國等國家及國際防範涉及國家安全、產業發展關鍵技術和科技外流及人才挖角的法規及作法進行比較後，認為我國刻正研議之「敏感技術保護法」草案在現行法制不足下，有助於建立敏感科技之有效管理機制。惟目前敏感科技之定義與營業秘密法之定義並無不同，為免發生受營業秘密法保障即受敏感科技法拘束之情形，進而引發政府過度管制人民財產權之疑慮，建議草案中宜增加主管機關指定敏感科技時，除衡量國家安全、國民利益外，亦應一併衡量產業技術國內外市場比率，相關技術領域趨勢，且在最小必要限度內指定之原則。

關鍵字

營業秘密；敏感科技；商業間諜；競業禁止；出口管制

並列摘要

Though small in geographic area, with its advancement on the production process and research and development, for decades, Taiwan has played an indispensible role in the global supplying chains in the high-technology industry. While such technology mostly serve for commercial purposes, some of which, known as ＂Sensitive Technology,＂ simultaneously possess significant value on the aspects of national economy and military security. With high-technology industry from China on the rise, it is evident that Taiwan's role in the industry is challenged by what's called ＂Red Supply Chain.＂ It is not uncommon that events such as events like Chinese companies misappropriating Taiwan's technology or Sensitive Technology of the Taiwanese companies occur in recent years. Under the circumstances, protecting the technology and Sensitive Technology developed by Taiwanese companies become a timely and imminent issue. However, no legal system governing the intangible technology is currently in place in Taiwan, wherefore, establishment of a proper legal system is imperative. This article will review the existing acts and regulations that are intended to prevent foreign companies, mainly Chinese companies, from misappropriating technology or poaching talents from Taiwan and make comparison to those from the United States and other countries. This article will show that Sensitive Technology Protection Act, which is being drafted as of now, does help structuring a system which provides control over Sensitive Technology. Nevertheless, the proposed definition of Sensitive Technology substantially overlaps with that of trade secrets. Consequentially, to refrain that all trade secrets would be subject to Sensitive Technology Protection Act, leading to excessive control over rights to property , this article suggests another provision - that is, on top of national safety and public interests, when labeling Sensitive Technology, the authorities must take into account a technology's market shares in both foreign and domestic markets, consider the trends in relevant industry, and exercise highest scrutiny when designating a technology as Sensitive Technology.