TAIWAN Trends and Developments Contributed by: Lihuei Mao, Dennis Yu and David Tien, Lee and Li, Attorneys-at-Law
Introduction of economic espionage crime under amended NSA In order to make the scope of protection of trade secrets comprehensive and consistent, the legis - lators referred to the terms of the Trade Secret Act and added the crime of “economic espionage” to the amendment to the NSA. Under the amendment, any individual who engages in any act that infringes upon the trade secrets of any national core critical technology (ie, steals Taiwan’s critical technologies) with the following motive will be deemed to have committed an economic espionage crime and will face a maximum of 12 years in prison and a fine of between NTD5 million and NTD100 mil - lion: • for offshore entities, or for organisations, institu - tions or groups established by or substantially controlled by offshore entities, or for any individual appointed by the foregoing; or • with the intent of using such national core critical technology in offshore entities. To further deter criminal behaviour, the following applies: • if the offender has profited by more than the maxi - mum fine, the maximum fine may be increased to two to ten times the amount of the offender’s undue profit; • if a representative, manager, agent, employee or other practitioner/personnel of an entity or indi - vidual commits such crime while performing their job, the entity/individual will also be subject to the aforementioned fine; and • considering that the consequential damage of an economic espionage crime may be extremely seri - ous, an attempt to commit said crime should also be punishable. Moreover, to ensure the maximum range of protec - tion, an “act that infringes upon the trade secrets of any national core critical technology” includes but is not limited to the acquisition, use, disclosure, repro - duction and concealment of any national core critical technology.
Definition of national core critical technologies Under Article 3 of the amendment to the NSA, “nation - al core critical technologies” refers to the following technologies (the outflow of which to foreign entities will significantly damage Taiwan’s national security, competitiveness in certain industries, or economic development): • technologies that are regulated for the purpose of complying with international conventions, conduct - ing national defence, or national critical infrastruc - ture security considerations; or • technologies that assist with the production of leading technologies or enhance the competitive - ness of important industries. In response to changes in the industrial environment or technological circumstances, the content and definition of national core critical technologies will be reviewed regularly by the National Science and Tech - nology Council (NSTC), announced by the Execu - tive Yuan, and submitted to the Legislative Yuan for recordation. In order to stipulate more specific pro - cedures for reviewing the content and definition of national core critical technologies, the Regulations on the Designation of National Core Critical Technologies (the “Regulations”) were promulgated by the NSTC on 26 April 2023. Under the Regulations, the NSTC will establish: • the Review Committee of National Core Critical Technologies (the “Review Committee”) – respon - sible for the designation, alternation and other matters relating to national core critical technolo - gies; and • the Office of National Core Critical Technologies – responsible for tracking and analysing the develop - ment of relevant technologies and making propos - als regarding national core critical technologies. Furthermore, based on Article 9 of the PRC Relations Act, the NSTC also promulgated the Regulations on the Designation of National Core Critical Technolo - gies-Related Projects Commissioned, Subsidised or Funded by Government Agencies (Authorities) (the “Subsidies Regulations”) to:
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