The starting point of counting the statute of limitations for the right to prohibit and prevent infringement of trade secrets under Article 10 (1) of the Unfair Competition Prevention Act

According to the provision of Article 166(2) of the Civil Code, in light of the fact that the extinctive prescription of a claim aimed at omission runs from the time of the act of violation and the contents of Article 14 of the Unfair Competition Prevention Act, in the case of a right to claim prohibition or prevention of the act of infringement of trade secrets as provided by Article 10(1) of the Unfair Competition Prevention Act, the act of infringement should commence once in order to run the extinctive prescription, and further, the fact that a person holding trade secrets infringes or is likely to infringe his business interest by the act of infringement and the infringer

Articles 10(1) and 14 of the Unfair Competition Prevention Act; Article 166(2) of the Civil Act

Busan Heavy Industries Co., Ltd. (Attorney Han-soo, Counsel for the plaintiff-appellant)

Same-sex Detailed Co., Ltd. (Attorney Lee Yong-soo, Counsel for defendant-appellant)

Daegu High Court Order 94Ra13 dated April 19, 1995

The order of the court below is reversed, and the case is remanded to the Daegu High Court.

The grounds of reappeal of the re-appellant are examined.

1. As to the first ground for reappeal

Examining the reasoning of the court below in comparison with the record, it is just for the court below to find the applicant company that there is no exclusive right to produce and sell the factoring paper of this case, and it cannot be viewed that there is an error of law like the theory of lawsuit in the original judgment, and therefore there is no reason to discuss.

2. As to the second ground for reappeal

A. According to the reasoning of the order of the court below, the court below stated that the applicant company may claim the prohibition and prevention of the production and sale of the above gate against the respondent pursuant to Article 10 of the Unfair Competition Prevention Act, since the applicant company's business interest is infringed or likely to be infringed upon in light of the circumstances where the non-applicant 1, who held office as the representative director of the applicant company, established the respondent company and manufactured and sold spin sp sp sp sp sp sp sp sp sp s which are similar to that produced by the applicant company after the non-applicant 1 established the respondent company. However, in light of the facts that the non-applicant 1 was trying to establish the above sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp s.

B. However, the former part of Article 14 of the Unfair Competition Prevention Act provides that "the right to file a claim for prohibition or prevention of infringement of trade secrets under Article 10 (1) of the Act shall be extinguished by the extinctive prescription in the event that the infringement of trade secrets continues, unless the right is exercised for one year from the date on which the owner of the trade secrets becomes aware of the fact that the business profit is or might be infringed by the infringement of trade secrets, and that the right to file a claim for prohibition or prevention of the infringement of trade secrets under Article 10 (1) of the Unfair Competition Prevention Act is extinguished by the extinctive prescription in the event of the infringement of trade secrets, and that the right to file a claim for prohibition or prevention of the infringement of trade secrets under Article 16 (2) of the same Act runs from the time of the infringement of trade secrets and the fact that the owner of the trade secrets is or might be infringed by the infringement of trade secrets, and that the infringer and the infringer should be known.

However, as decided by the court below, even though the respondent company established a company which intends to produce and sell spin factoring paper similar to that produced by the applicant company using the applicant company's trade secret, such circumstance alone cannot be readily concluded that the infringement has commenced at the time of establishment of the respondent company, and therefore, it shall not be deemed that the statute of limitations has run immediately from the time of establishment of the respondent company. In addition, according to the records, the respondent company commenced sales of spin paper to the applicant company's customer around February 1993, and the applicant company is recognized to have sent the respondent a warning demanding the suspension of the infringement to the respondent as of December 17, 1993. Thus, it is difficult to conclude that the statute of limitations has run at the time of filing the application of this case, unless there are such circumstances.

Nevertheless, the court below determined that the applicant's claim against the respondent for prohibition or prevention of infringement of this case has expired by prescription for the same reasons as its reasoning. Thus, the court below's order erred by misunderstanding the legal principles as to the extinctive prescription under Article 14 of the Unfair Competition Prevention Act and failing to exhaust all necessary deliberations, and such unlawful acts are deemed to have affected the result of the trial. Therefore, there is a reason to point this out

3. Therefore, the order of the court below is reversed without examining the remaining grounds for reappeal, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Shin Sung-sung (Presiding Justice)