Asian or Air Co., Ltd. (LLC, Kim & Lee LLC, Attorneys Song-chul et al., Counsel for the plaintiff-appellant)

LSScarpherd Korea Co., Ltd.

Seoul Central District Court Order 2018Kaga51063 dated December 31, 2018

The appeal of this case is dismissed.

The decision of the court of first instance shall be revoked. A person eligible to apply for perusal, reproduction, etc. (including entrustment of delivery of documents under the Civil Procedure Act) of the complaint, reply, and preparatory documents submitted by the parties to the Seoul Central District Court 2018Gahap5271 (hereinafter referred to as the “principal case”) and of the documents submitted by the parties to the case shall be limited to the parties to the principal case (the applicant has reduced the scope of the court records seeking restrictions on perusal, reproduction, etc. in the trial as shown in the attached Tables 1 and 2).

1. Summary of grounds for appeal;

Although the portion indicated in the separate sheet No. 1 and the separate sheet No. 2, among the written complaint, written answer, and briefs submitted on the merits, fall under “used business information” with “independent economic value,” the decision of the court of first instance that dismissed the applicant’s request for restriction, etc. by excessively narrow interpretation of the meaning of “trade secret” is unfair.

2. Determination

A. Relevant legal principles

According to Article 163(1)2 of the Civil Procedure Act, where there exists a vindication that “the trade secret (referring to the trade secret prescribed in subparagraph 2 of Article 2 of the Unfair Competition Prevention and Trade Secret Protection Act) of the parties to the litigation falls under the category “when it is entered in the litigation record,” the court may, upon the request of the parties, limit the parties to the application for issuance of the original, certified, or abridged copy of the part in the litigation record by decision.

The term "trade secret" under Article 2 subparagraph 2 of the Unfair Competition Prevention and Trade Secret Protection Act means any technical or operational information useful for business activities, such as methods of production and sale, which is not known publicly, has independent economic value, and has been maintained in secret by reasonable efforts.

Here, “information that is kept confidential by reasonable efforts” refers to a situation in which it is recognizable that information is maintained and managed as confidential objectively, such as labeling or notifying a person who can be perceived as confidential information, restricting access to the information, or imposing a duty to maintain confidentiality on the person who has access to the information, etc. (see, e.g., Supreme Court Decisions 2008Do3435, Jul. 10, 2008; 2016Do10389, Jan. 25, 2017).

(b) Whether it constitutes trade secrets;

In the existing food supply contract (Evidence 1-2) and the shareholder agreement between the applicant and the applicant made between the applicant and the applicant (Evidence 6-1 and 2 of the Evidence A), it is proved that the information contains a secret provision. However, this means that the parties to each of the above contracts should bear the duty of confidentiality pursuant to the above provision, and it cannot be inferred immediately that the applicant actually maintained and managed the information related to each of the above contracts. Furthermore, the applicant is not aware that the applicant has made an indication or notification that the information is confidential, and that the applicant has kept and managed the information objectively in any way, such as restricting the access to the information or imposing the duty of confidentiality on the persons who have access to the information or the persons who have access to the information. In addition, there is no other evidence that the applicant sought restrictions on perusal, etc. also does not constitute any information that has been maintained and managed as confidential by reasonable efforts.

Therefore, the application of this case under the premise that the applicant's trade secret is entered in the litigation records of the case on the merits is without merit.

3. Conclusion

Therefore, the decision of the first instance court is just, and the appeal of this case is dismissed as it is so decided as per Disposition.

[Attachment]

Judges' engine fever (Presiding Judge)