Recently high technology which is source of the national wealth have been
leaked to overseas for various reasons such as merging with overseas companies,
involving in foreign capital in domestic firms then spilled the technology, and
key technical employees to abroad. Approximately 80.8% of the 7-8 years of
technology leakage occurred by previous or current employees and it is difficult
to detect in advance as the outflow of technology grow in size and methods of
disclosure are becoming more development.
Under these circumstances, this paper focuses on the protect of the key
technologies for source of the national wealth, among the various ways to
protect the human resource security, which are possibility of key employees
transfer to other firms can be prohibit or limit according to the contract to each
person or legal issue, and in the aspect of freedom of occupation and limitation
of fundamental rights theory.
Through this, this study contribute to prevent the leaking of industrial
technology and preserve the national wealth that carried the possibility of legal
action and constitutional limitations.
According to the paragraph 2 of Article 37 of the Constitution, the nation
may be restricted the citizen's freedom of selecting occupations for 'national
security'. However, in this case the nation should have to set up three things.
First, the nation have to clearly prove the change jobs of the person directly concerned can have a high probability of national and social benefit. Second, on
the basis of 'special sacrifice' the nation have to reward corresponding maintain
and treatment for limited and deprived for the rights to choose a new
occupation of the employee. Third, the limitation and prohibition of employment
for the employee should have to required within the minimum period and range.
Even though the nation restricted the freedom of occupation of the person
directly concerned in order to protect the nation's property, knowledge and
technology, which is a source of national wealth, it can only restrict individual's
liberty that does not infringe the essential content of freedom of occupation
unless it falls within the range of very strictly required criteria to choose.