One day, a court ruling arrives at your company. A dispute over technical materials with a partner firm you did business with a few years ago is underway, and a court-appointed expert says they will enter your office and factory to view and copy PCs and servers, and to directly operate and measure production equipment. What happens if you refuse? The facts claimed by the other party may be accepted as true, and your company may face a fine of up to 100 million won.
This is not a story from a distant country. It is the content of the "Act on the Promotion of Mutually Beneficial Cooperation Between Large Enterprises and Small and Medium Enterprises" (hereinafter the Win-Win Cooperation Act), which passed the National Assembly on Jan. 29, 2026 and is scheduled to take effect on Feb. 20, 2028. It has become a reality that Korean companies will soon face.
The Win-Win Cooperation Act: 'Discovery' Lands in Korea
Technologically advanced countries such as the United States and Germany have long operated a "Discovery" system that allows a party in litigation to secure evidence held by the opposing party. By contrast, in Korea the side claiming harm — usually a small or medium-sized enterprise whose technology was taken — had to prove the infringement itself, even though the decisive evidence lay within the opposing company. In a 2025 survey by the Korea Intellectual Property Office and the Korea Venture Business Association, the biggest difficulty in technology infringement litigation was cited as "difficulty in proof, such as evidence collection" (73%).
Accordingly, the government made "eradicating technology theft from small and medium-sized enterprises" a core national agenda and announced eradication measures jointly with relevant ministries last September, and the amendment to the Win-Win Cooperation Act is the follow-up legislation. The Korean-style discovery system, the so-called "K-Discovery," was introduced into the Win-Win Cooperation Act through three mechanisms — ① expert fact-finding investigation, ② evidence preservation order, and ③ party examination — and will take effect in February 2028 after a grace period of about two years. While it is not immediately in force, this also means there are only two years to prepare. The following examines the main contents of the amended Win-Win Cooperation Act and the matters companies must prepare during the grace period.
① The First Mechanism: 'Expert Fact-Finding Investigation' — The Expert Enters the Company Directly
The most powerful mechanism in the amended Win-Win Cooperation Act is the "expert fact-finding investigation." A neutral expert appointed by the court can directly enter the office, factory, or other premises of the alleged infringer to ask questions, view and copy materials, and even operate devices to take measurements and conduct experiments. The results are submitted to the court in an "investigation result report" and used as evidence at trial.
There are several safeguards. At least one of the experts must hold a lawyer's qualification, and before the investigation, a preparatory pleading date must be held to give the parties an opportunity to explain the technology or present their opinions. Materials subject to attorney-client privilege (ACP) are excluded from the scope of the investigation. However, if a party refuses or obstructs the investigation without justifiable grounds, the court may accept as true the facts the applicant sought to prove, and a fine of up to 100 million won may be imposed on the corporation and up to 50 million won on executives and employees.
Among these, the most important is the preparatory pleading date held before the investigation is decided. An expert investigation is, in effect, an intrusive measure comparable to a search and seizure. Unlike a search and seizure carried out without notice under a warrant, this investigation must go through a preparatory date before the court's decision. Since both parties attend that date, the three requirements for an expert investigation — ① a substantial possibility that a violation occurred, ② the proportionality of the burden imposed on the opposing party by the investigation, and ③ the subsidiarity that evidence is difficult to collect by other means — are expected to be fiercely contested. Therefore, faithfully explaining the technology and persuading the court as to whether the above requirements are met will likely be most important.
② The Second Mechanism: 'Evidence Preservation Order' — This Is Where Criminal Risk Begins
The "evidence preservation order" is a mechanism to address concerns about evidence destruction and to secure evidence at an early stage. The court may order a person holding materials necessary to prove a violation or to calculate the amount of damages to preserve those materials and prevent their damage or loss. It is set within a one-year period and can be extended, and notably, it can be applied for even before litigation is filed. This means that the moment signs of a dispute appear, the other party can place a "freeze order" on your company's data.
From this point on, it is no longer a civil matter. If a person violates an evidence preservation order by intentionally damaging materials or rendering them unusable, they face imprisonment of up to seven years or a fine of up to 100 million won. Conduct that would ordinarily be regarded as simple file organization or the deletion of data past its retention period can, after the order, itself become a serious crime, so caution is needed.
③ The Third Mechanism: 'Party Examination' — Taking Statements Outside the Courtroom
"Party examination" is a system similar to the U.S. deposition, a procedure in which parties can examine one another outside the courtroom under the lead of attorneys. The process is audio- and video-recorded. It can be conducted even before the first pleading date, shifting the center of gravity for organizing issues and securing evidence to before the trial proper.
The person giving the statement may be a party to the litigation or a third party, and takes an oath before the examination. If a party refuses to appear, take an oath, or make a statement without justifiable grounds, the opposing party's claims may be accepted as true, and if a third party who is not a party makes a false statement, they may face criminal punishment at a level equivalent to perjury (imprisonment of up to three years or a fine of up to 10 million won).
Victory or Defeat Rests on Two Years of Preparation
In disputes over technology theft and misappropriation, the decisive evidence ultimately consists of digital materials such as PCs, servers, email, messengers, and collaboration tool logs. The restoration of deleted files, metadata analysis, and reconstruction of user behavior determine the outcome. Therefore, a company's response must begin not after a dispute erupts but in ordinary times.
As soon as a dispute is anticipated, a company must activate a Legal Hold system that prohibits the deletion of relevant data, and must be able to prove integrity by managing hash values of the data and a Chain of Custody record. At the same time, it must prepare in advance a defensive rationale for contesting the scope of investigation so that trade secrets unrelated to the case are not excessively exposed. In particular, if a company routinely organizes the scope of attorney-client privilege (ACP) materials excluded from the subject of an expert fact-finding investigation, it can prevent legal advisory materials that could have been protected from being exposed as they are during a dispute. Above all, on the premise that the entire process of receiving, storing, using, and disposing of a partner firm's technical materials may someday be presented as evidence in court, a company needs to organize its record management, access controls, and internal approval procedures.
There is one more point to note. The amended law includes within its scope the misappropriation of technical materials that occurred at the stage before a transaction contract was concluded. Therefore, one must not forget that the same standard applies not only at the review stage before beginning a transaction with a partner firm, but also in situations of examining the other party's technical materials during a merger, acquisition, or business transfer.
The most certain preparation is, in the end, to handle a partner firm's technical materials in accordance with lawful authority and legitimate procedures from the outset. The time remaining until enforcement is the final preparation period to put such practices and systems in place, and transparently managing digital evidence so that its legality can be "proven" at any time will become a company's competitive edge.
