1. As to the assertion that the author of the second paragraph program under the judgment of the court below is the plaintiff among the first and second points

Article 5 of the former Computer Program Protection Act (amended by Act No. 9625, Apr. 22, 2009; hereinafter the same) provides that "the program created by a person engaged in the business of a corporation, etc. under the planning of the State, corporation, organization, or other user (hereafter referred to as "corporation, etc." in this Article) shall be the author of the relevant program unless otherwise stipulated in a contract, work regulations, etc." In this context, "the planning of a corporation, etc." means that a corporation, etc. prepares a computer program work (hereinafter referred to as "program") on the basis of a specific intention and orders a person engaged in the specific production, and it may be done explicitly and implicitly. However, in order to establish an implicit planning, it is reasonable to deem that the above provision is limited to cases where the intention of the corporation, etc., which is an exception to Article 2 subparagraph 2 of the same Act, in which a person who actually created the program, is the author of the program, etc., to the extent that it is clearly identical with the case where the intent is expressed.

In light of the above legal principles and the records, even if the Defendant was engaged in the Plaintiff’s business at the time of developing the 2-Ga program as set forth in the judgment below, it is difficult to view that there was an explicit or implied planning as to the creation of the above program solely based on the circumstances as set forth in its decision, which are acknowledged by the adopted evidence

In the same purport, the judgment of the court below that the plaintiff cannot be deemed the author of the above program is justifiable.

This part of the judgment of the court below is not erroneous in the misapprehension of legal principles as to the interpretation of the planning of corporations, etc. under Article 5 of the former Computer Programs Protection Act.

The remaining arguments in this part of the grounds of appeal are nothing more than errors in the selection of evidence or fact-finding, which belong to the exclusive jurisdiction of the lower court, and thus do not constitute legitimate grounds of appeal.

2. As to the remainder of the second claim

According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning based on its adopted evidence, and since the facts of the judgment alone are insufficient to view the program of paragraph (1) as being kept confidential by considerable effort, each of the above programs does not constitute the plaintiff's trade secret under Article 2 subparagraph 2 of the former Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 8767 of Dec. 21, 2007), and it is not sufficient to recognize that the defendant stored, stored, stored, stored, stored, and managed the above program in the storage media even after the retirement of the plaintiff company, and it is insufficient to recognize that the program of paragraph (1) 2 is not the plaintiff's trade secret and that the program of paragraphs (b) through (f) of Article 2 is not the plaintiff's trade secret, since it is insufficient to recognize that the program of paragraph (1) was developed by the defendant, it cannot be viewed as the plaintiff's program author or the plaintiff's trade secret.

In light of the records, the above fact-finding and judgment of the court below are justifiable.

The purport of this part of the grounds of appeal is that there is error in the selection of evidence or fact-finding, which belongs to the exclusive jurisdiction of the lower court, or that there is an error of misapprehension of legal principles in the judgment of the lower court on the premise of fact-finding which the lower court

3. On the third ground for appeal

In a case where a false party's assertion is clearly excessive due to negligence or misunderstanding, or where the party's assertion is not clear or incomplete or contradictory from a legal point of view, the court shall actively exercise the right of explanation and give the party an opportunity to state his opinion (see Supreme Court Decision 2001Da11055, Jan. 25, 2002, etc.). However, the matters alleged in the ground of appeal that the court below should have exercised the right of explanation do not constitute a case where the court below should exercise the right of explanation as above. Thus, the court below's failure to exercise the right of explanation cannot be deemed unlawful.

Therefore, this part of the grounds of appeal cannot be accepted.

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)