2017No2052 A. Violation of the Unfair Competition Prevention and Trade Secret Protection Act (Business)

Divulgence, etc. of confidential information)

B. Occupational breach of trust

1. A.

2.(a) B

3.(a)(b) C.

4.(a) Co., Ltd. D

Defendant A, B, and Prosecutor (Defendants)

He/she has accepted the prosecution (prosecutions, public trials), transfer-to-date trials (public trials)

Law Firm LLC (Defendant A, B, and D)

Attorney Hong Tae-tae, Mag-gu, Kim Jong-tae

Law Firm Barun (for Defendant C)

Attorney Jeon Byung-chul, Counsel for the plaintiff-appellant

Seoul Central District Court Decision 2016Gohap235 Decided June 6, 2017

October 20, 2017

The lower judgment against the Defendants is reversed.

Defendant C shall be punished by imprisonment for six months.

However, the execution of the above punishment shall be suspended for one year from the date this judgment becomes final and conclusive.

Defendant A, B, and D are not guilty.

The summary of the judgment of innocence is publicly announced.

1. Summary of grounds for appeal

A. Defendant A and B (the misunderstanding of legal principles and factual errors)

As a result of the prediction and investigation conducted by Defendant B, 17 Mayors/Do Governors (hereinafter referred to as “the result of the prediction and investigation conducted by this case”) among the results of the prediction and investigation conducted by Defendant B on the 6-4 local election winners, the outcome of the prediction and investigation conducted by the 17 Mayors/Do Governors (hereinafter referred to as “the result of the prediction and investigation conducted by this case”) lost the impartiality and did not constitute trade secrets. As such, Defendant A and B did not intend to use trade secrets

(b) Prosecutors;

1) misunderstanding of facts and misapprehension of legal principles as to Defendant D Co., Ltd.

Defendant D Co., Ltd. (hereinafter referred to as “D”) did not provide education to prevent the infringement of trade secrets of others, and as a result of the forecast and investigation, the advance direction for reporting was ambiguous, and supervision was not made after the instruction was given, and there was no institutional device to prevent the illegal use of trade secrets. Defendant D was negligent in giving due attention and supervision to prevent the illegal use of trade secrets.

2) misunderstanding of facts and misapprehension of legal principles as to Defendant C

A) The primary charges of occupational breach of trust

Defendant C is a vice president of H(hereinafter referred to as “H”) and a person in charge of conducting forecast and investigation services for 6/4 local elections. As such, Defendant C is obligated to maintain confidentiality for three terrestrial companies (E, F, and G companies) in accordance with the agreement or the good faith principle. The crime of breach of trust does not require damage due to reality and is at risk of damage, and there was a risk of damage to 3 terrestrial companies.

B) The offense of occupational breach of trust is established against Defendant C on the ground that the conjunctive charge of occupational breach of trust was either compensated for damages to three terrestrial companies, or incurred losses that were excluded from the next selection of the entity.

C) Violation of the Unfair Competition Prevention and Trade Secret Protection Act

DA had a risk of causing damage to H's customer and the terrestrial 3 companies, so there was a purpose of obtaining unjust profits or causing damage to the terrestrial 3 companies, who are the holder of trade secrets.

3) Unreasonable sentencing on Defendant A and B

The sentence of the lower court against Defendant A and B (a fine of eight million won) is too unhued and unreasonable.

2. Amendments to Bill of Indictment and ex officio determination on Defendant D

We examine the grounds for appeal ex officio prior to the judgment on the grounds for appeal. In the trial court, the prosecutor filed an application for changes in the indictment with respect to Defendant D as shown in the annexed sheet, and this court permitted this and changed the subject of the judgment, so the judgment of the court below was no longer maintained. However, even if there are such grounds, the prosecutor's argument for misconception of facts and misapprehension of legal principles with respect to Defendant D still meaningful

3. Determination on the grounds for appeal

A. Judgment on the misunderstanding of facts and misapprehension of legal principles by Defendant A and B

1) The term "trade secret" means a trade secret that is not known to the public and has independent economic value, and it means any technical or operational information useful for business activities, such as methods of production and sale, which is kept confidential by considerable effort, [Article 2 subparag. 2 of the former Unfair Competition Prevention Act (amended by Act No. 13081, Jan. 28, 2015; hereinafter referred to as "the former Unfair Competition Prevention Act")]. The term "non-publicly known information" means that information is not known to many and unspecified persons because it is not known to the general public, such as that it is impossible to obtain information without going through a holder (non-public information). The term "where information is kept confidential by considerable effort," means that information is objectively maintained and managed as confidential, such as indicating or notifying that it is confidential, restricting access to the information or imposing access to the person who has access to the information, or imposing a duty to comply with the information on the person who has access to the information, etc. (see, e.g., Supreme Court Decision 2017Do196).

2) Whether the results of the instant forecast and investigation were trade secrets

A) Non-public land

(1) Whether the non-public land has been maintained before June 4, 2014

(A) According to the evidence adopted and examined by the lower court and the lower court, the following circumstances are recognized.

① On June 4, 2014, 17:31 BN political unit reporters obtained the results of the instant forecast and investigation from an unqualified person via a mobile phone message. N was disclosed to a AY organization or reading room using eight reporters of BN political unit, such as AO. AO. On the same day, AO was again made public on the Ma organization or reading room used by nine reporters, including Defendant B. AO again received the results of the instant forecast and investigation in 2 and 3 times through another indoor room.

At around 17:40 on the same day, Defendant C, one of the survey agencies conducting forecast and investigation, sent a text message stating that he/she will receive a text message from the FL FL FL reporter to ask for the authenticity of the ex-post investigation. Defendant C, on the same day, notified FO of the results of the prediction investigation in Seoul Special Area: 17:44 FNN Foundation FO of the Republic of Korea as a text message. Defendant C sent an e-mail forecast inspection results to 17:46 to 17:47 FLM reporters, DADB DB DC, Cheongbu, and FP Administrative Officers. Defendant C received the text message verifying that he/she will receive the authenticity of the ex-post investigation from the Gangwon FL on the same day. Defendant C received the text message that he/she received the text message to ask for the authenticity of the ex-post investigation from the Gangwon branch on the same day through the mobile phone survey from 17:47 p. 17:30 on the same day.

③ Before the same day, H Research Institute AR received the results of the forecast and investigation of this case from FS as assistants to National Assembly members on the same day.

④ The forecast and investigation result of the instant case was disclosed on the bulletin board of the Internet Game club website around 18:00 the same day, and the Internet news BA website around 18:00:40 on the same day.

⑤ At least 18:00 on the same day, forecast and research results were entered in the program, which is a general channel broadcasting company, BP, and Q.

(B) Considering the above circumstances and the propagation of social-related network services, such as mobile phones, the Internet, and Y, there is sufficient probability that the outcome of the instant forecast and investigation was known to many unspecified persons prior to June 4, 2014. If the information is known between those who are engaged in the same industry and are likely to gain economic benefits, such as those who are in the same industry, it shall be deemed that the non-public nature was lost, and it shall not be deemed that the public has lost the non-public nature. The outcome of the instant forecast and investigation is deemed to have lost the non-public nature.

On the other hand, a prosecutor asserts that a person, other than a person holding a trade secret, who knows the information, is not subject to the duty of confidentiality even if he/she knows the information, if there is a person who knows the information, it does not lose the duty of confidentiality. Since a person having knowledge of the information refers to a state that is not known to many and unspecified persons, in principle, it is irrelevant to the non-public nature as a matter of principle. However, if a person having knowledge of the information has a duty of confidentiality, it may serve as the basis for asserting that the information is not known to many and unspecified persons. Article 167 of the Public Official Election Act provides that prohibition of disclosure, such as the process of the entry and the result of the entry investigation, is prohibited. However, it is the person who has conducted the entry investigation. The person who has obtained the predicted investigation result before the voting ends, cannot be deemed to bear the duty of prohibition of publication under the Public Official Election Act, and even if he/she bears the duty of prohibition of publication of house affairs, it is difficult to expect that the result of the predicted investigation in this case is not maintained.

(2) Since June 4, 2014, the forecast and investigation result of the instant unofficial map since 18:00, even if it was not known or known to many unspecified persons prior to 18:00, the authenticity of the outcome of the instant forecast and investigation is not clear, and thus, it cannot be deemed that the outcome of the instant prediction and investigation was lost as soon as the result of the entry and investigation is broadcast through three terrestrial stations, even if there is room to view that at least a minimum, the outcome of the instant prediction and investigation did not lose the unofficialness. The announcement of the information refers to the situation known to many and unspecified persons, so a considerable period of time has passed from the time when the results of the entry and inspection were broadcast, or all three terrestrial companies have not lost the unofficialness to broadcast the results of the entry and inspection. The outcome of the instant forecast and investigation in the instant case is difficult to view that there is a single or indivisible information for each candidate’s prediction rate, etc., depending on the completion of all broadcasting investigations on the entire 17 constituencys.

The following facts are acknowledged according to the evidence adopted and examined by the court below and the court below.

On June 4, 2014, Defendant B obtained the forecast and investigation results of the instant case through a group or reading room, reported them to Defendant A, and then entered the forecast and investigation results of the instant case from 17:43 to 17:46 on the same day into a subscription broadcasting program. On the same day, as the ballot counting was commenced at 18:00 terrestrial third companies, Defendant B confirmed that part of the forecast and investigation results of the instant case were consistent with that of Defendant B, and told that Defendant B would produce the subscription survey results to the proceeding producer. Snae reported the fact that “I will report a terrestrial subscription investigation” was immediately finished, and thereafter, Defendant B presented the forecast and investigation results of the instant case that was entered in the constituency from 18:0:0 to 49 on the same day to 18:0,0049 on the same day, and thereafter, D could have predicted the result of the investigation into the constituency from 18:0 to 39:40 on the same day to 19:40 on the same broadcasting district.

Next, the defendant A et al. started the implementation of the crime of the Unfair Competition Prevention Act by inputting the predicted research results from 17:43 to 17:46 to inputting the input program into the input program (if it is deemed that the implementation was commenced at this time, the decision on the loss of non-public nature should be made on the basis of this hour).

The use of trade secrets is an act that can be specifically specified as an act that is directly or indirectly used for business activities, such as production and sale of goods, or for research and development activities, depending on the original purpose of use of trade secrets. The 'the purpose of future use' as the result of the prediction and investigation of the 6/4 local election winner is to inform viewers through broadcasting after the completion of the local election. Defendant B, etc. was unable to clearly know whether the contents are the same as the result of the prediction and investigation of the 6/4 local election winner at the time of entry into the program. As such, the act of entry alone cannot be deemed as the commencement of the implementation of the use of trade secrets. Defendant B, etc. verified that the contents of entry are the same as those of the prediction and investigation of the 3rd local election winner at the time of entry into the program, and it is difficult to view that Defendant B, etc. broadcast the predicted results at least before the completion of the 18:00:49 in order to broadcast the results of the prediction and investigation as seen earlier.

B) Confidentiality

The 3 terrestrial companies concluded a letter of performance for maintaining confidential information and agreed to maintain security and penalty for the results of the prediction and investigation of the 6/4 local elected candidates, concluded a forecast and investigation service contract with H and other investigative agencies, and made efforts to maintain security by restricting the subjects or methods accessible to the results of prediction and investigation through various internal methods and imposing the duty of confidentiality on the persons who have access to the information.

However, the terrestrial three companies only provide that the results of the oral investigation from the implementation angle to the completion of the voting can not be leaked, and the results of the oral investigation can be used from 18:00, which is after the completion of the voting, and the results of the oral investigation can be leaked on the website operated by the terrestrial three companies at the same time as the voting is closed. In other words, since 18:00, the implementation angle did not impose confidentiality on the terrestrial three companies, and it does not seem that the results of the oral investigation were managed as confidential from the terrestrial three companies to the 18:00, which is the end of the voting. It cannot be deemed that the confidentiality has been maintained even after 18:00.

C) Conclusion

Considering the above circumstances, it is insufficient to view the evidence submitted by the prosecutor that Defendant A and B used the predicted investigation result of the instant case among the results of the prediction investigation conducted by the winning winner of the 6/4 local election, which is maintained as the 'business secret of Defendant A and B', and there is no other evidence to acknowledge it. Defendant A and B’s assertion of misunderstanding of facts and misapprehension

B. Determination of misconception of facts and misapprehension of legal principles against Defendant D by the prosecutor

As seen in Article 3-A-2(2) of the Unfair Competition Prevention Act, since the violation of the Unfair Competition Prevention Act is not recognized to be committed against A and B, Defendant D, a corporate employee, does not constitute a violation of the Unfair Competition Prevention Act. The Prosecutor’s allegation of mistake and misapprehension of legal principles is without merit.

C. Determination of misconception of facts and misapprehension of legal principles with respect to Defendant C by the prosecutor

1) The primary charges of occupational breach of trust

A) The judgment of the court below

Defendant C, who is an employee, is not the subject of occupational breach of trust with respect to forecast and investigation results under the service contract, given that the party who is obligated to perform contractual duties with the terrestrial third party according to the 6th local election forecast and research service contract (hereinafter “instant service contract”) is H, a juristic person, and that another person’s business affairs are handled by the representative agency dealing with the business affairs on behalf of the juristic person. As such, Defendant C, who is an employee, is not the subject of occupational breach of trust with respect to the 6th local election. Defendant C is not the subject of occupational breach of trust with respect to the 3 terrestrial third parties. Defendant C cannot be deemed to have caused a decrease in the amount arising from the increase in supply and the enhancement of competitive competitiveness, or property damage equivalent to the cost of investigation, which is equivalent to the amount arising from the enhancement of competitive competitiveness.

B) Determination of the immediate deliberation

Since the crime of breach of trust is established when a person who administers another’s business obtains pecuniary advantage or has a third party obtain it by doing so through an act in violation of his/her duty, only the person who administers another’s business is the subject of the crime of breach of trust. The person who administers another’s business refers to a person who is recognized to have a fiduciary relationship to handle the business in light of the principle of trust and good faith in a domestic relationship with the other person. The new relationship may also arise through statutory provisions

Where a legal entity enters into a service contract, another legal entity is bound to perform its affairs in the service contract by representing the legal entity, and the legal entity is bound to perform its affairs by representing the legal entity. As such, the representative agency is obligated to perform its affairs in accordance with the content of the obligations that the legal entity bears, and thus becomes the person responsible for breach of trust, who administers another’s affairs on behalf of the legal entity. However, in the inside of the legal entity, a person who administers affairs in accordance with the direction of the representative agency does not perform its affairs on behalf of the legal entity, but performs affairs inside the legal entity, and is merely performing affairs inside the legal entity. Therefore, there is a fiduciary relationship in which he/she performs affairs in relation to another person. Even if Defendant C is the vice president of H and the person responsible for performing prediction and investigation services on local elections, even if he/she performed affairs as the person responsible for performing affairs on behalf of the legal entity, he/she does not have a fiduciary relationship in relation to the other person. The prosecutor’

2) Preliminary charges of occupational breach of trust

A) The judgment of the court below

Defendant C’s act does not pose a concern that H is liable to compensate for damages arising from the breach of a penal provision or a contract for compensation for damages for a breach of a contract. H does not incur a loss that may not take place from three terrestrial companies to a failure to receive an air exit investigation service contract. Defendant C does not incur a loss to H by notifying DC of the outcome of the prediction and investigation of the winning winner. Thus, the crime of breach of trust is not established.

B) Determination of the immediate deliberation

In the crime of breach of trust, property damage includes not only a real damage but also a case of causing the risk of actual damage to property, and the determination of whether or not property damage has occurred should be understood from an economic point of view. H is obligated to maintain confidentiality in accordance with the instant service agreement, and has a duty not to disclose the data acquired in the course of investigation to a third party without obtaining approval from a terrestrial third party. However, Defendant C, a person in charge of H service performance, disclosed the results of an election forecast investigation to DC before the withdrawal structure was published through broadcast. H was likely to be liable for damages to a terrestrial third party due to such nonperformance of obligation.

In addition, Defendant C’s act was at the risk of not allowing H to receive forecast and investigation services contracts from three terrestrial companies in the future. According to Article 6(3) of the 6th local election forecast and investigation contracts, if the results of the 3rd local election were leaked externally due to intention or negligence, and if there were reasonable grounds to deem that the 3rd local election were affected by actual election prices, the 3rd local election campaign companies did not have any influence on the 50% of the contract price per each company, as well as the 3rd local election campaign companies’ damages liability for damages. Accordingly, the 3rd local election companies did not have any influence on the 3rd local election campaign companies’ online election campaign, and the 3rd local election campaign companies did not have any influence on the 3rd local election campaign companies’ reputation and status. As such, the 3rd local election campaign companies did not have any influence on the 3rd local election campaign companies’ damages.

3) Violation of the Unfair Competition Prevention Act

A) The judgment of the court below

DC served in the DB planning team, which is not media or public opinion pollss, but rather a DB planning team, and only asked the workplace employees to change the results of the forecast and investigation for the winner in order to show his/her ability, and did not deliver the results of the forecast and investigation. DC only takes charge of economic outlook and industrial trend analysis in the DB room, but did not take charge of the duties such as entrusting the survey to the public opinion poll company, such as H. The Defendant C did not receive economic benefits in return for delivering the results of the forecast and investigation for the winner. Considering these circumstances, it is insufficient to recognize that the evidence submitted by the prosecutor alone was aimed at obtaining unjust benefits or causing damage to the terrestrial third party at transmitting the results of the forecast and investigation for the winner who is a trade secret.

B) Determination of the immediate deliberation

In light of the records, the judgment of the court below is reasonable and there is no error of law in misunderstanding of facts or misunderstanding of legal principles.

4. Conclusion

Of the judgment of the court below, there are reasons for ex officio reversal of the part on the defendant D, and the appeal by the defendant A and B is reasonable, and since the prosecutor's appeal against the defendant C is partially reasonable, the judgment of the court below is reversed in accordance with Article 364 (2) and (6) of the Criminal Procedure Act, and the following judgment is

[Grounds for multi-use Judgment]

Criminal facts

At least three terrestrial public opinion poll organizations, including H, agreed that "the right to research data and results shall vest in three terrestrial companies," and each public opinion poll organization shall not disclose or transfer all data acquired in the course of conducting an investigation to a third party without approval of three terrestrial public opinion poll companies, and shall bear penalty for confidential outflow." As such, Defendant C, who is the chief executive officer of H 6/4 local election forecast and service contract, has a duty not to cause H to compensate for damages to three terrestrial companies, or to enable H to obtain more than the forecast and research service contract from three terrestrial companies, or to obtain more than the forecast and research services contract from H 3 terrestrial companies. Nevertheless, Defendant C violated his/her duty by receiving prior notification of the results of the prediction and research of local elections from DDAB offices, and by receiving notification of the results of the prediction and research of local elections from DD and D 6/4 local election from D 6/4 local election managers and 64/44 of Seoul.

Summary of Evidence

1. Defendant C’s partial statement

1. Legal statement of the witness DC;

1. Investigation report (the result of analyzing text messages from the vice president C mobile phone text);

1. Application of the 6th local election forecast and research service contract, and BM0 books and subordinate statutes;

1. Article applicable to criminal facts;

Articles 356 and 355(2) of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act

Reasons for sentencing

Defendant C divulged the forecast and investigation results to be kept confidential even though he is the vice president of H and the person in charge of the local election forecast and investigation service contract. Accordingly, H lost trust from the person requesting the service contract, and actually incurred considerable damages, such as breaking away from the selection of a member of the National Assembly election forecast and investigation service company. Defendant C’s criminal liability is not easy.

Defendant C is against the disclosure of the outcome of the predicted investigation. At the time, the outcome of the predicted investigation was considerably disseminated. Defendant C has no personal benefit thereby. Defendant C has no history of criminal punishment.

In addition, considering the age, character, conduct, environment, circumstances and result of the crime of Defendant C, all of the sentencing conditions shown in the pleadings after the crime was committed, the punishment as ordered shall be determined.

The acquittal portion

1. Summary of the facts charged

On June 4, 2014, 17:32, D news stations located in K, Jung-gu, Seoul, 2014, obtained the forecast investigation result of this case, which includes 17 Mayors/Do Governors 1, 2 candidates and their expected return rates, from among the results of the forecast investigation of the 6:4 local elected candidates, which are the trade secrets of 3 terrestrial elections, and, in other words, reported to Defendant A, Defendant A with six inputs waiting in advance from 17:43 to 17:46 of the same day in accordance with Defendant A’s instructions, and input the results of the forecast investigation into the 3:4:0 of the same day, 18:0 of the same day, Defendant B conspired with 3:40 of the same terrestrial election campaign, which is the result of the prediction and investigation of the 3:6:0 of the prediction and investigation of the local elected candidates, and produced the results of the prediction and investigation into the local election of 4:40 of the same terrestrial elected candidates.

B. Determination

This part of the facts charged constitutes a case where there is no proof of a crime as seen in Article 3-A-2 of the Criminal Procedure Act, and thus, a not-guilty verdict is rendered pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment is publicly announced pursuant to

2. Defendant D

A. Summary of the facts charged

The summary of this part of the facts charged is as shown in the annexed sheet of facts charged.

B. Determination

This part of the facts charged constitutes a case where there is no proof of crime as seen in Article 3-2(2) of the Criminal Procedure Act, and thus, a not-guilty verdict is rendered under the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment is publicly announced

3. Defendant C

A. Summary of the facts charged

At the same time, Defendant C, as the vice president of H, agreed that three terrestrial public opinion pollss and three terrestrial voters shall vest in the right to research data and results, and each public opinion poll organization shall not disclose or transfer all data acquired in the course of conducting an investigation to a third party without the approval of three terrestrial public opinion polls, and shall bear penalty for outflow of confidential information. Accordingly, Defendant C, as the vice president of H, shall not divulge the results of the prediction and investigation of local voters, who are three trade secrets, to the outside. Nevertheless, Defendant C violated its duty, at the same time notified DC belonging to DB offices of the results of the prediction and investigation of local voters of the amount of 6/4 local election campaign and the amount of 3rd local election campaign secrets, which are expected to have been distributed to the 3rd terrestrial election campaign managers or to have been distributed to the 3rd terrestrial election campaign managers, which are expected to have been distributed to the 46th terrestrial election campaign managers and the amount of 36th terrestrial election campaign secrets, which are expected to have been distributed to the 36th terrestrial election campaign owners and the 46th terrestrial election campaign.

B. Determination

The facts charged in this part of the facts charged constitute a case where there is no proof of crime as stated in Articles 3-3-3(c)(1) and 3-3(c) of the Criminal Procedure Act and thus a not-guilty verdict should be made pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, as long as the facts charged in the preliminary facts charged and the ordinary concurrent relation are found guilty of

The presiding judge, the senior judge

Judges' premium table.

Judges Chang Sung

A person shall be appointed.

A person shall be appointed.