Plaintiff (Law Firm Barun, Attorneys Lee Dong-soo et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Rate, Attorneys Definition-young et al., Counsel for defendant-appellant)

August 26, 2009

Daejeon District Court Decision 2006Gahap4987 Decided October 31, 2008

1. The plaintiff's appeal and the conjunctive claim added in the trial are all dismissed.

2. The costs of the lawsuit after the appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked.

In the first place, the defendant shall pay to the plaintiff 1,00,000 won with 5% interest per annum from January 13, 2005 to the delivery date of a copy of the complaint of this case, and 20% interest per annum from the next day to the full payment date.

Preliminaryly, the defendant shall pay to the plaintiff 50 million won with 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of full payment (the plaintiff added the conjunctive claim at the trial).

1. Basic facts

가. 원고는 손톱깎이 등 철금속 제품의 제조판매 및 가공업과 각종 물품의 수출입업 및 수출입 대행업을 주요 업무로 하는 회사이고, 피고는 1986. 1. 5. 원고에 입사하여 1999. 9. 6.부터 원고의 무역부장으로 근무하면서 원고의 주요 납품업체인 미국의 배셋사와의 구매 및 수출판매, 하청업체 선정 및 납품요청, 무역상담 등의 업무를 담당하다가 2004. 2. 28. 퇴사한 사람이다.

B. On September 30, 2002, the Defendant concluded an annual salary and employment contract (hereinafter “instant contract”) containing the following: (a) between the Plaintiff and the Plaintiff, the Defendant, within two years after his retirement, shall not have any employment or direct or indirect impacts on the company under competition with the Plaintiff (Article 3(3)); (b) shall not disclose to a third party all the company’s business affairs that may be subject to managerial secrets, such as management conditions, technical information, and transaction cost, which he/she acquired while working for the Plaintiff; and (c) shall maintain confidential information for three years after his/her retirement (Article 10).

다. 피고는 원고를 퇴직한 후 2004. 4. 30.경 ‘ (상호 생략)'라는 중개무역회사를 설립, 운영하면서 중국업체에 도급을 주어 원고가 배셋사에 납품한 바 있는 손톱깎이 세트, 손톱미용 세트 등과 일부 유사한 제품을 배셋사에 납품하고 있다.

[Ground of recognition] A without dispute, entry of evidence No. 1, purport of the whole pleadings

2. Judgment as to the main claim

A. Whether a contractual liability is established

(1) The parties' assertion

(A) The plaintiff's assertion

1) As recognized earlier on September 30, 2002, the Defendant concluded the instant contract with the Plaintiff including the prohibition of competition and the maintenance of confidentiality.

2) 그런데 피고는 위 계약에 위반하여 원고와 경쟁관계에 있는 회사를 설립하여 원고의 영업비밀인 ‘배셋사의 바이어 명단, 납품가격, 아웃소싱 구매가격, 물류비, 가격산정에 관한 제반자료, 원고의 중국 하청업자인 존 울리(John Woolley), 미스터 종(본명 종지봉)에 대한 자료’를 이용하여 원고가 납품하던 손톱깎이 등의 제품을 원고의 하청업체를 통해 배셋사에 납품하였다.

3) Accordingly, the Plaintiff suffered damages from a decrease in operating income equivalent to one billion won since 2004, and the Defendant is liable to compensate the Plaintiff for such damages.

(B) Defendant’s assertion

The instant contract constitutes a contract that violates good morals and other social order stipulated in Article 103 of the Civil Act by excessively restricting the freedom of choice of occupation as stipulated in the Constitution, and thus null and void.

(2) Determination

(A) The fact that the Defendant entered into the instant contract including the prohibition of competition and the maintenance of confidentiality is recognized as above.

(B) Claim for damages caused by the breach of a non-competitive agreement

1) Even if there is a competitive prohibition agreement, if such an agreement is excessively limited to the freedom of occupation and the right to work of workers guaranteed under the Constitution or excessively limits free competition, it shall be deemed null and void as a juristic act contrary to good morals and other social order under Article 103 of the Civil Act.

However, the validity of an agreement for prohibition of competitive business should be determined comprehensively and comprehensively by taking into account the interests of employers who are worth protecting, pre-retirement status of workers, period of restriction on competitive business, region and type of occupation, whether employees are provided, public interests, etc. If the interests of employers who are worth protecting are serious, the validity can be recognized even if the other elements are somewhat insufficient, or if the interests of protection are less than those of protection, the validity can be recognized only when the requirements of other elements are met more strict. Thus, the issue being the most concerned in the agreement for prohibition of competitive business is whether the interests of the employers are clearly held. The issue is whether the interests of the employers are protected by the agreement for prohibition of competitive business, and even if the interests protected by the agreement do not fall under the "trade secret" under Article 2 subparagraph 2 of the Unfair Competition Prevention and Trade Secret Protection Act, if only the employers have knowledge or information, and it does not constitute an agreement to divulge it to a third party.

2) Therefore, prior to determining the validity of the instant agreement on the prohibition of competition in light of the aforementioned legal principles, we examine whether each of the above information claimed by the Plaintiff constitutes a value-added interest protected by the agreement on the prohibition of competition.

A) Whether it constitutes trade secrets

(1) A trade secret means any technical or managerial information useful for any production method, sale method, and other business activities, which are not known to the public, and kept confidential by considerable effort. Here, the term “public information is not known” means any information that is not known to persons, such as those engaged in the same industry, who are likely to obtain economic benefits, and that has an independent economic value means a case where the holder of the information can obtain competitive benefits from the other competitor through the use of the information or where considerable expenses or effort has been made for the acquisition or development of the information. Therefore, even if the Defendant used the technical or managerial information acquired during the employment period after his retirement, it cannot be immediately viewed as a trade secret solely on the ground that the information cannot be seen as a trade secret even if it was not known to the same industry, etc., and such information is independent, and is maintained as confidential by considerable effort.

② 먼저 ‘미국 배셋사의 바이어 명단’에 관하여 보건대, 갑 제4호증의 13, 14, 128, 145, 148, 151, 157, 167의 각 기재에 변론 전체의 취지를 종합하면, 배셋사는 바이어를 통하여 국내외 경쟁업체들에게 원하는 제품의 사양과 그림 또는 도면 등을 보낸 다음 납품가격 등을 제시하도록 경쟁을 붙여 적합한 업체를 납품회사로 선정하여 왔으며, 원고는 배셋사에 대하여 손톱깎이 등 제품을 독점적으로 공급하는 회사가 아니라 여러 납품업체들 중의 하나이고, 배셋사의 바이어들은 원고를 통하여 국내 동종업체를 소개받기도 하였고 소개받은 업체들과 명함을 주고받고 품질에 대한 상담을 한 사실이 인정되는바, 그렇다면 배셋사의 바이어 명단은 상당 부분 동종 업계에 알려져 있을 뿐만 아니라, 관련 업체들이 별다른 노력을 하지 않고도 그 명단을 확보할 수 있었을 것으로 보이므로 영업비밀에 해당한다고 볼 수 없다.

③ According to the aforementioned evidence, the Defendant’s retirement from the Plaintiff and supplied the Plaintiff with set of money at a price lower than the Plaintiff’s supply price to the set of money. Meanwhile, according to the above evidence, the Plaintiff’s supply price was known or foreseeable among other competitors. The Plaintiff offered most of the products supplied to set of money to set of money to set of money to set of money to set of money than the Plaintiff’s supply price to the set of money. On the other hand, given that the Defendant’s employment cost of the products supplied to set of money to set of money was considerably lower than that of the Plaintiff’s goods supplied to the Plaintiff, if it is acknowledged that the Defendant supplied money to the Plaintiff at a lower price than that of the Plaintiff’s goods to set of money to set of money to the Plaintiff’s domestic company, the Plaintiff’s trade secret purchase price can not be seen as being considerably lower than that of the Plaintiff’s goods supplied to the Plaintiff at a lower price than that of the Plaintiff’s goods to set of money to set of money.

④ Finally, according to the health stand and the evidence as seen earlier, it is recognized that the Defendant had a Chinese company produce a product through the final salary bars, etc., which was known by the Plaintiff at his/her retirement. However, according to the above evidence, it is also acknowledged that the existence and the final salary bars do not make a transaction with the Plaintiff only among the domestic companies, but are engaged in a transaction with other companies. Thus, it is difficult to view that the personal information or contact information about the final salary bars, etc. is known only to the Plaintiff and it is not known to other competitors, and thus, it is difficult to view it as a trade secret.

⑤ Therefore, it is difficult to view all the above information claimed by the Plaintiff as a trade secret.

B) Whether it constitutes the interest to be protected by the non-competitive agreement

The "general knowledge" that an employee can normally obtain during the period of employment does not constitute a legitimate interest that can be protected by a competitive prohibition agreement. Here, the "general knowledge" refers to the general knowledge that is not unique to an employer, but is generally known in the industry as a whole.

However, the facts that each of the above information alleged by the Defendant, which was known by the Plaintiff while in office, was generally known to the same industry as the above, are recognized. Therefore, it is difficult to view that each of the above information claimed by the Plaintiff constitutes a benefit worthy of protection by the Agreement on the Prohibition of Competitive Practices.

3) In light of the above circumstances, if the Defendant does not seem to have received special remuneration due to the conclusion of the instant competitive agreement (the Plaintiff asserted that the Plaintiff paid a total of KRW 21,420,000 to the Defendant from April 2004 to December 2004, but it is not sufficient to recognize that the Plaintiff’s claim was paid for the same reason as the Plaintiff alleged, and there is no other evidence to acknowledge that the said claim was paid for the same reason as the Plaintiff’s assertion, if the instant competitive agreement is subject to protection of each of the above information claimed by the Plaintiff, it is against the social order stipulated in Article 103 of the Civil Act because it excessively limits the Defendant’s freedom to choose an occupation, which is a fundamental right under the Defendant’s Constitution, and thus, the Plaintiff’s claim based on the said competitive agreement is without merit.

(c)Claims for damages caused by breach of a confidentiality agreement;

As seen above, insofar as each information of the Plaintiff’s assertion that the Defendant used constitutes a trade secret or an interest to be protected by a confidential agreement, the Plaintiff’s assertion that each of the above information constitutes a trade secret or an interest to be protected by a confidential agreement is without merit.

(b) Whether a tort is established due to a violation of the Unfair Competition Prevention and Trade Secret Protection Act;

(1) The plaintiff's assertion

(A) As alleged earlier by the Plaintiff, the list of the three specifications constitutes trade secrets stipulated in the above law. Since the Defendant operated the business using the above information, the Defendant’s act constitutes a tort resulting from trade secret infringement, and therefore, the Defendant is liable to compensate the Plaintiff for the damages incurred therefrom.

(B) In addition, the defendant exported the goods identical to the goods produced by the plaintiff or the goods copied by the plaintiff. This act constitutes an "unfair competition act" under Article 2 subparagraph 1 (i) of the Unfair Competition Prevention and Trade Secret Protection Act, and the defendant is liable for compensating the plaintiff for business losses pursuant to Articles 5 and 6 of the same Act.

(2) Determination

(A) Whether a tort caused by trade secret infringement occurred

As seen earlier, the Plaintiff’s assertion on the premise that the list, etc. of the set of the set of the Plaintiff’s claim does not constitute a trade secret is without merit, and thus, the Plaintiff’s assertion on the premise that the above materials constituted a trade secret is without merit.

(B) Whether an act of unfair competition constitutes a tort

피고가 원고를 퇴직한 후 중개무역회사를 설립, 운영하면서 원고가 배셋사에 납품한 바 있는 손톱깎이 세트, 손톱미용 세트 등과 일부 유사한 제품을 배셋사에 납품하고 있는 사실은 앞서 인정한 바와 같다.

Therefore, as to whether the Defendant’s supplied products either imitated the goods identical to the Plaintiff’s products or the Plaintiff’s products, or imitated the Plaintiff’s products, there is insufficient evidence to acknowledge it, and there is no other evidence to acknowledge it. Therefore, the Plaintiff’s assertion on the premise that the Defendant’s supplied products are identical to the Plaintiff’s products, or the products copied by the Plaintiff’s products are identical to the Plaintiff’s products manufactured, is without merit.

C. Whether tort due to occupational breach of trust is established

(1) The plaintiff's assertion

(A) The Defendant, as alleged earlier, had been aware of in the course of performing duties in the Plaintiff’s work, had used various business information and set up a direct company and made a deal with the set of money with the set-off company using a spawn trust relationship between the set-off company and China.

(B) Contacting the Plaintiff from the date of retirement to the Plaintiff, the Plaintiff had a contact with the Plaintiff, and had the Plaintiff sent the samples specifically, by making it possible for him to deal with his new business entity immediately after his retirement.

(C) Furthermore, the Defendant produced a product entirely identical or almost the same as the Plaintiff’s product by using a Chinese company currently used by the Plaintiff, and supplied a set of supply price to a set of sets, thereby causing severe damage to the Plaintiff and its subordinate companies to the extent that the existence of the company is at risk. Rather, the Defendant violated the Plaintiff’s existing trading line, thereby leaving a lot of profits.

(D) The Defendant’s act of evading the Plaintiff’s existing transaction line by taking advantage of the Defendant’s aforementioned transactions prior to retirement and the information learned by the Plaintiff, and the confidential relationship with the transaction company, constitutes occupational breach of trust. Therefore, the Defendant is liable to compensate the Plaintiff for damages caused by the tort.

(2) Determination

(A) The crime of occupational breach of trust is established when a person who administers another’s business obtains pecuniary advantage or has a third party obtain such pecuniary advantage through an act in violation of one’s duty, thereby causing loss to the principal. Here, “act in violation of one’s duty” refers to any act in violation of a fiduciary relationship with the principal by failing to perform an act that is naturally expected under the statutory provisions, contractual terms, or the good faith principle in light of specific circumstances, such as the content and nature of the business (see, e.g., Supreme Court Decision 98Do4704, Mar. 12, 199).

Therefore, if a company employee disclosed a trade secret to a competitor or ships it out without permission for the purpose of using it for his own interest, the act of taking it out constitutes a crime of occupational breach of trust (see Supreme Court Decision 2003Do4382, Oct. 30, 2003). In a case where the data is not disclosed to an unspecified number of unspecified persons even if it is not a trade secret, and is a major business asset produced by an employer using considerable time, effort and expenses, the act of taking it out constitutes a crime of occupational breach of trust (see Supreme Court Decision 2004Do7962, Jul. 14, 2005). Even if a company employee lawfully takes it out and takes it out does not constitute a crime of occupational breach of trust, if the act of taking it out does not constitute a crime of occupational breach of trust even if it was done by returning or destroying the trade secret, etc. to a competitor company, or did not return or discard it for the purpose of using it for his own interest (see Supreme Court Decision 2008Do9696, Apr. 29, 20008).

(나) 피고가 원고를 퇴직한 후 원고가 배셋사에 납품한 바 있는 손톱깎이 세트, 손톱미용 세트 등과 일부 유사한 제품을 배셋사에 납품하고 있는 사실은 앞서 인정한 바와 같으나, 피고가 원고 주장과 같이 원고를 퇴사하기 전부터 배셋사와 접촉하면서 원고에서 근무하면서 업무상 지득하게 된 영업비밀이나 그 밖의 보호될 이익에 해당되는 각종 영업정보와 배셋사와 중국 하청업체와의 돈독한 신뢰관계를 이용하여 위와 같이 제품을 납품하게 되었는지에 관하여 살피건대, 갑 제11호증, 갑 제12호증의 1, 2의 각 기재만으로는 이를 인정하기에 부족하고 달리 이를 인정할 증거가 없다.

Therefore, the plaintiff's above assertion, which is premised on the defendant's act of divulging the plaintiff's trade secret, is without merit.

3. Judgment on the conjunctive claim

A. The plaintiff's assertion

(1) As alleged in the Plaintiff’s primary claim, the Plaintiff suffered property damage due to the decrease in sales of the Defendant’s competitive act, unfair competitive act, and occupational breach of trust.

(2) As a result, the Plaintiff and its subordinate company’s existence foundation itself was shaking, etc. The Plaintiff’s employees also led to the aggravation of the Plaintiff’s intra-company labor crisis due to the Plaintiff’s increase in sales, including the Plaintiff’s retirement or booming, etc., and the Plaintiff’s credit rating and future prospects were deteriorated due to the suspension of transactions with the depositr that accounts for at least 90% of the Plaintiff’s export amount. It is clear in light of

(3) If so, even if it is difficult to conclude that the amount of damage caused by the reduction of sales amount as alleged by the Plaintiff is directly related to the Defendant’s competitive act, unfair competitive act and occupational breach of trust, as long as it is obvious that the Plaintiff suffered such intangible damage due to the Defendant’s act, the Defendant is liable to compensate for the Plaintiff’s intangible damage.

(4) Furthermore, the amount of intangible damages suffered by the Plaintiff shall be calculated at least KRW 500,000,00 in full view of the developments in the instant case, the Defendant’s breach of trust, the Plaintiff’s serious managerial ties, the Defendant’s competitive conduct, the Defendant’s competitive conduct, the Unfair Competition Prevention, and the Plaintiff’s occupational breach of trust. Therefore, the Defendant is obliged to pay the said amount with compensation for damages.

B. Determination

First, as alleged by the Plaintiff, whether the Defendant engaged in competitive conduct, unfair competitive conduct, and occupational breach of trust as alleged by the Plaintiff do not have any evidence to acknowledge it, and thus, the Plaintiff’s above assertion based on this premise is without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed in its entirety, and the judgment of the court of first instance that dismissed the plaintiff's main claim is just as it is concluded, and the plaintiff's appeal and the preliminary claim added in the trial are dismissed in its entirety as it is without merit. It is so decided as per Disposition.

Judges Cho Jong-young (Presiding Judge)