In a case where Gap corporation, a system semiconductor development company Eul, entered into a joint employment contract with Eul university graduate school students of Eul University pursuant to the agreement entered into with Eul University Industry-Academic Cooperation Foundation, and Byung entered into an employment prohibition agreement with Byung to protect trade secrets, and Byung was employed in the competitor company for a period of one year from the date of retirement, and Byung thereafter entered the competitor company and worked in the competitor company before one year from the date of retirement, and Eul applied for the provisional injunction on the transfer of Eul company, the case holding that Byung should not be employed in the company or engaged in the business thereof for a period of one year from the date of retirement.

In a case where Gap corporation, a system semiconductor development company, entered into a joint employment contract with Eul University University Industry Cooperation Foundation, which was established with Eul University University, to protect trade secrets, Byung entered into an employment prohibition agreement with Eul company for a period of one year from the date of retirement, and Byung entered into a competitor company with Eul company and worked for Eul company before one year from the date of retirement, and Eul applied for the provisional injunction against transfer, the case holding that Byung's employment prohibition agreement cannot be viewed as null and void as a juristic act contrary to good morals and other social order stipulated in Article 103 of the Civil Act, since Byung's employment and work for Eul company before one year from the date of retirement, Byung's employment and job constitutes the interest of the employer who is worth protecting information acquired as Gap company's employee, Byung's status and work for one year from the date of retirement, and it cannot be deemed that the consideration for the prohibition against transfer was paid to Byung, and thus, Byung's employment cannot be deemed null and void by the date of retirement.

Article 103 of the Civil Act, Article 300 of the Civil Execution Act

Alchip Co., Ltd. (Attorney Kim-hee, Counsel for the defendant-appellant)

Respondent (Attorney Lee Byung-hoon, Counsel for defendant-appellant)

Suwon District Court Order 2011Kahap225 dated November 17, 2011

1. Of the decision of the court of first instance, the part against the applicant falling under the order of prohibition below shall be revoked.

The respondent shall neither work nor work for Samsung Electronic Co., Ltd. until June 30, 2012.

2. The applicant's remaining appeal is dismissed;

3. 20% of the total costs of litigation shall be borne by the Claimant, and 80% by the Respondent, respectively.

Until July 1, 2012, the respondent shall not be engaged in the business related to the above company through the investment of Samsung Electronic Co., Ltd., the same affiliate company, or a corporation established at home or abroad by the same affiliate company or other means. Where the respondent violates the above order, the respondent shall pay one million won per day of the violation to the applicant. The enforcement officer shall disclose the purport of the above order in an appropriate manner (the applicant has reduced the purport of the application in the trial).

The decision of the first instance shall be revoked, and the same decision as the purport of the application shall be sought until August 31, 2012.

1. Facts of recognition;

According to the records of this case and the purport of the whole examination, the following facts are recognized.

A. The applicant is a company established on November 22, 2002 for the purpose of the manufacture of semiconductor integrated circuits, semiconductor design, semiconductor radarping, etc., which developed a system semiconductor through the process of semiconductor basic design, production, management, etc., and conducts the services of Samsung Electronic Co., Ltd. (hereinafter “TT”) or supplies it to Samsung Electronic Co., Ltd.

B. On May 15, 2008, the Claimant entered into an agreement with the Mine University Industry-Academic Cooperation Foundation (hereinafter “instant agreement”) on an employment contract-type software master’s degree program (hereinafter “instant agreement”) in 2008 with the following content.

From June 16, 2008 to December 31, 2010, the applicant for the ○○ project included in the main sentence: from June 16, 2008 to December 31, 2010, shall pay KRW 16 million in the first year to the Mine University Industry-Academic Cooperation Foundation, KRW 40 million in the second year (the agreement dated January 16, 2009 changed to KRW 12 million), and KRW 34 million in the third year (the agreement dated February 1, 2010 changed to KRW 8 million) with the funds for responding to the implementation of the project. The applicant for the ○ shall support an incumbent developer as an instructor for the training of customized software manpower, provide an opportunity for a graduate student to participate in the joint research and development, etc., for at least three months, and shall employ five graduate graduates from the support project (the change to the agreement dated January 16, 2009).

C. Under the instant agreement, the applicant paid KRW 16 million to the Mine University Industry Cooperation Foundation on June 26, 2008, KRW 12 million on February 12, 2009, and KRW 8 million on February 26, 2010. The respondent received KRW 29,91,000 from the Mine University Industry Cooperation Foundation for two years. The respondent, who was a graduate school student, agreed to work for at least three years in the applicant company immediately after graduating from the graduate of the graduate school course in accordance with the instant agreement on October 2, 2008.

D. On September 1, 2010, the applicant and the respondent entered into an employment contract under the instant agreement and entered into a trade secret protection agreement (hereinafter “instant agreement”) with the following dates.

2. Table 2. The respondent does not disclose or disclose to a third party any of the following matters and other trade secrets (hereinafter “instant information”) acquired during the performance of his/her duties or in connection with his/her duties, except in cases where it is used for designated work, to a third party inside or outside the applicant company. 1) The respondent does not disclose or disclose any of the technical information, such as design methods, design drawings, manufacturing process, manufacturing equipment, computer programs related to manufacture, etc. 3) personnel management, organization, marketing, and financial management, etc. 9. The respondent does not disclose or disclose any trade secret acquired during his/her duties or without the applicant’s prior consent even after his/her retirement in order to protect the applicant’s trade secret, taking into account that the respondent’s duties are closely related to the applicant’s trade secret, for at least one year from the date of his/her retirement without the applicant’s prior consent.

E. On May 201, while the respondent was in charge of the “BACKND” work in the system placement of the applicant company’s semiconductor circuit (LYOT), he applied for the employment examination for the first half of the year 201 of Samsung Electronic. The respondent submitted a resignation document to the applicant on June 30, 201, and the applicant retired from office on July 1, 201. The respondent thereafter was employed in Samsung Electronic Co., Ltd. that produces semiconductors on February 27, 2012 and has served until now.

2. The parties' assertion

(a) An applicant;

Since the respondent violated the effective prohibition of the transfer of this case and worked for Samsung Electronic, which is the same as or similar to the applicant's business scope, the transfer of the respondent to the company stated in the purport of the application shall be prohibited during the period of the transfer prohibition stipulated in the transfer prohibition agreement of this case.

B. Respondent

The respondent did not know that he did not engage in the applicant's trade secrets for a period of five months since he/she entered the applicant company and received the basic education of the new employee, and actually conducted the "BACEND" business, and did not know that he/she did not engage in the applicant's trade secrets. The respondent did not output or possess trade secrets, such as "FRONTNNE CHCRT", "BACKNNNNCHKSS", and the circuit allocation technology held by the applicant is sufficiently generalized and not the user's interest, and there was no considerable annual salary or special consideration in return for the contract prohibiting the transfer of occupation, and thus the contract prohibiting the transfer of occupation excessively restricting the applicant's freedom of occupation and the right to work is null and void as it goes against good morals and other social order. Accordingly, the applicant's application should be dismissed.

3. Determination

A. Standard for determining the validity of an employment prohibition agreement

Even if there exists an employment prohibition agreement between an employer and an employee, if such agreement is excessively limited to the worker’s freedom to choose an occupation, the right to work, etc. 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 as stipulated under Article 103 of the Civil Act. The determination on the validity of such an employment prohibition agreement shall comprehensively take into account the interests of the employer, the status of the employee, the period, area, and type of occupation subject to the protection value, the period, area, and type of occupation subject to the restriction on occupation, the existence of remuneration for the employee, the reason why the employee retires, the public interest, and other circumstances (see, e.g., Supreme Court Decision 200

B. Comprehensive Consideration: The Agreement prohibiting the Transfer of this case is valid.

Although the contract prohibiting the change of occupation of the respondent, which set the period of prohibition of the change of occupation for one year from the date of retirement of the respondent, is restricted to the freedom of occupation and the right to work of the respondent who is an employee, considering the following circumstances recognized by the records of this case, it cannot be deemed null and void as a juristic act contrary to good morals and other social order stipulated in Article 103 of the

(1) The employer's interest worth protecting;

The purpose of the instant prohibition agreement is to prevent the act of causing damage to the applicant by retiring the instant information that the respondent, who is an employee, was aware of while working, from working in the same type of business or by getting employed in other competitors. The purpose of the agreement is to protect the outcomes of research and development projects conducted by investing a large number of time and expenses in order to promote research and development and to maintain order in sound competition among the companies, so that the outcomes of research and development are not disclosed to other competitors without permission due to the transfer of the employee. The term “user’s profit at value to be protected” not only falls short of the scope of “trade secret” as defined in Article 2 subparag. 2 of the Unfair Competition Prevention and Trade Secret Protection Act, but also constitutes either an agreement to not disclose the information or information that the relevant employer only has, or to maintain customer relations or business credit.

According to the records of this case, if the applicant’s “ASIC” team designs, alters, or converts the language of the program to the “LAYOUT” team, and then entrusts the production to Samsung electronic company after completing circuit assignment work at the “LAYOUT” team, and completing circuit placement work, and design for semiconductors. Among them, circuit placement work is important for review and supplementation due to a lot of mistakes, and in particular, the applicant is subject to a lot of implementation errors, and the respondent was made, and the respondent was in a position to know the content of the contract through various in-house education, seminars, in-house networks, or in-house computer files stored in the “LAYUT” team. Thus, among the information of this case, the respondent’s information of this case, which is a worker belonging to the applicant company, has become aware of the content of the contract through the above prohibition of leakage of information of this case, constitutes an information of the user’s interest.

(2) Status and duty of a worker before his retirement

According to the records of this case, pursuant to the Convention, the respondent graduated from a master's degree course, and had considerable expertise in the master's degree course, and participated in various education, seminars, meetings, etc. after entry, and perused various data in the intra-company network, etc., the respondent was able to obtain technical information on the applicant's circuit assignment work. Since it is recognized that the respondent was engaged in the circuit assignment work and performed the "BACEN" work for about five months, it can be deemed that the respondent was engaged in the position and work that is likely to undermine the interests of users who are worth protecting.

(3) the period, area, and occupation subject to the prohibition of occupation;

In full view of the circumstances indicated in the records in this case, such as the period of prohibition of change of occupation, region, and occupation subject to prohibition of change of occupation, and the extent reasonably necessary for the protection of employer interests should be determined by the balance between employer, employee, and public interest. The reasonableness should ultimately be determined by the balance between the period of provision of funds to the applicant and the respondent, the period of duty agreed upon by the applicant in accordance with the instant agreement, the degree of expenses and effort made by the applicant to make the applicant, “FRTRNNNND CHCRT”, “BACRS”, etc., and the amount of funds provided by the applicant under the instant agreement, the amount of funds provided by the applicant pursuant to the instant agreement, the possibility of the respondent being employed by other semiconductor companies by utilizing professional knowledge, etc., the period of prohibition of change of occupation cannot be deemed excessive from the date of retirement. However, although the instant agreement prohibits employment to the business that produces similar products, it is not clear that the scope of “similar products” should be interpreted strictly to the scope of occupation subject.

(4) Whether payment for workers has been made or not

As seen earlier, the applicant supported 36 million won to the Mine University Industry Cooperation Foundation pursuant to the instant agreement, and thereby, recognized that 29,91,000 won has been delivered to the respondent. If the applicant was employed as an actual employee by guaranteeing the employment of the respondent, even if there are some differences in the benefits and welfare level agreed upon between the applicant and the respondent, it can be deemed that the overall consideration for prohibiting the transfer of the applicant for one year is paid.

(5) Grounds for employee's retirement

If a labor relationship is terminated due to a cause attributable to the employer, the agreement on the prohibition of transfer cannot be deemed valid, but the respondent violates the contract that the applicant has agreed to work for three years in order to work for Samsung Electronic and then retires by himself, it is difficult to view that the agreement on the prohibition of transfer of this case is invalid.

(6) Public interest and other circumstances

Although the contract on the prohibition of the change of occupation limits the freedom of occupation and the right to work, the respondent itself has chosen to work for a certain period in return for receiving the economic support from the company whose employment has been guaranteed in advance rather than the improper future, and if the applicant and the small and medium enterprise, such as the applicant, grants the research funds and technical support to the graduate school through the industry-academic cooperation process to secure excellent human resources, and permits the workers to easily transfer to another competitive enterprise without working for a reasonable period within the reasonable scope and presenting a better condition, there is a concern that the industry-academic cooperation process that can benefit both the employer, university, and workers, and three of the graduate students employed by the applicant company, other than the respondent, shall continue to work for the applicant company until now.

C. The need for preservation and the necessity of preservation, and whether indirect enforcement are made

(1) Therefore, the respondent is obligated not to work or engage in its business until June 30, 201, when one year has elapsed from July 1, 201, the date of retirement under the valid prohibition agreement of the transfer of this case. Furthermore, if the respondent entered Samsung Electronic Co., Ltd. that produces identical or similar products with the applicant company from February 27, 2012, and has served until now, the respondent shall not be deemed to have utilized professional knowledge and information that the respondent has served in the applicant company, even if specific duties in Samsung Electronic Co., Ltd. are not verified, so it is also necessary to order the respondent to be employed in Samsung Electronic Co., Ltd or not to engage in such duties.

(2) The applicant also seeks to prohibit the Plaintiff from engaging in the pertinent business affairs by hiring or other means to a corporation, etc. established by the Samsung Electronic affiliate or a corporation, etc. (hereinafter “instant affiliate”) established by the investment of Samsung Electronic affiliate or its affiliate at home and abroad. However, the concept and scope of the instant affiliate is unclear as well as not only does it prove that the instant affiliate manufactures products identical or similar to the applicant company.

(3) In addition, the Respondent seeks to pay one million won per day of each violation to the applicant when the Respondent violates the above order. However, in light of the fact that the Respondent enters Samsung Electronic after the first instance court's decision rejecting the applicant's application without immediately entering Samsung Electronic after his retirement, the Respondent does not prove that the Respondent continues to work or engage in his/her duties in Samsung Electronic in violation of the prohibition order of this court, and it is probable that the Respondent may continue to work or engage in his/her duties in violation of the prohibition order of this court, and thus, the Respondent's above assertion is rejected

4. Conclusion

Therefore, the applicant's application for provisional disposition of this case shall be accepted within the scope of the above recognition and the remaining application shall be dismissed as without merit. Since the decision of the court of first instance differs in part from this conclusion, the part against the applicant corresponding to the order of prohibition as stated in Paragraph 1 of this Article shall be revoked, the respondent shall be ordered to prohibit, and the remaining appeal of the applicant shall be dismissed, and it shall be

Judges Lee Ki-taik (Presiding Justice)