[2] The case holding that the above special law provides that the crime of occupational breach of trust in a commercial concurrent relationship and the crime of violation of the former Unfair Competition Prevention and Trade Secret Protection Act due to overseas divulgence of trade secrets shall be punished with more severe punishment, and both imprisonment and fine may be imposed concurrently

[3] The meaning of "acquisition of trade secret" under Article 18 (2) of the former Unfair Competition Prevention and Trade Secret Protection Act

[4] The case holding that the crime of acquiring trade secrets under Article 18 (2) of the former Unfair Competition Prevention and Trade Secret Act is completed when an employee of a car company has access to the company's computer network with the ID and password of another employee and has received the drawings which are trade secrets from his own computer

[2] The case holding that the crime of occupational breach of trust and the crime of violation of the former Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 8767 of Dec. 21, 2007) due to the divulgence of trade secrets may be punished with more severe punishment, and the above special law provides that imprisonment and fine may be imposed concurrently

[3] Article 18(2) of the former Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 8767 of Dec. 21, 2007) which punishs a person who acquires, uses, or divulges a trade secret refers to a case where a person who creates a trade secret as his/her own and is in a state of using it.

[4] The case holding that since an employee of a car company was allowed to use a trade secret drawing by accessing the company's computer network with ID and password through access to another employee's computer network, it was transferred to his own control area and used as his own computer, the crime of acquiring trade secret under Article 18 (2) of the former Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 8767 of Dec. 21, 2007) shall be completed, and even if it was deleted thereafter, it shall not be evaluated as an attempted crime

1. As to the assertion of misapprehension of legal principles as to the scope of punishment for an ordinary concurrent crime

In a case where a single act stipulated in Article 40 of the Criminal Act constitutes several crimes, “the punishment specified for a serious crime” refers to the punishment imposed in accordance with Article 40 of the Act which provides for the most severe punishment among several crimes, and the purport that the punishment cannot be imposed somewhat less than the lowest punishment stipulated in other Acts, that is, the punishment shall be imposed within the scope of a more severe penalty (see Supreme Court Decisions 83Do3160, Feb. 28, 1984; 2005Do8704, Jan. 27, 2006, etc.).

In light of the above legal principles and records, the court below is just in imposing a fine pursuant to Article 18 (4) of the former Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 8767 of Dec. 21, 2007), which provides that the crime of occupational breach of trust and the crime of violation of the Unfair Competition Prevention and Trade Secret Protection Act due to the divulgence of trade secrets should be punished with heavier punishment. However, the court below did not err in misapprehending the legal principles on the scope of the punishment of the crime of occupational breach of trust in the relationship of commercial competition as alleged in the grounds of appeal.

2. As to the misapprehension of legal principles as to trade secret acquisition

Article 18(2) of the former Unfair Competition Prevention and Trade Secret Act (amended by Act No. 8767 of Dec. 21, 2007) punishes a person who has acquired or used, or divulged to a third party, any trade secret useful to the company for the purpose of obtaining improper profits or causing damage to the company. Here, a trade secret acquisition refers to a case where the trade secret is created as one's own trade secret in light of social norms and is in a state where it can be used (see Supreme Court Decision 2008Do679, Apr. 10, 2008).

The court below held that the co-defendant's removal of trade secrets cannot be deemed to be merely an attempted crime since Co-defendant's removal was made in the court below's decision, since Co-defendant's access to the domestic network "SWOD" drawing/electronic delivery system to the non-indicted D (PASWOD) and the drawings of the court below, which are trade secrets, were downloaded into his own computer for his own business purpose, so that he could be transferred the trade secrets to his control area and used them as his own. On the other hand, since the crime of acquiring trade secrets was committed, the court below's decision is just and there is no error in the misapprehension of legal principles as to the acquisition or attempted suspension of trade secrets under Article 18 (2) of the former Unfair Competition Prevention and Trade Secret Act (amended by Act No. 8767 of Dec. 21, 2007).

3. As to the assertion that the calculation of the amount of fine is unlawful

According to the records, the court below's decision that recognized the amount of property profit derived from the crime of "violation of the Unfair Competition Prevention and Trade Secret Protection Act caused by divulgence of trade secrets abroad" as US$ 2,400,00 (2.4 billion won) and sentenced a fine of KRW 3 billion within the scope of aggravated concurrent crimes and discretionary mitigation based on such recognition is just, and there is no violation of the rules of evidence or misapprehension of legal principles, as alleged in the grounds of appeal.

4. Conclusion

Therefore, the appeal is dismissed, and part of the detention days after the appeal is included in the imprisonment. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ahn Dai-hee (Presiding Justice)