2016Mo625 A. Violation of the Unfair Competition Prevention and Trade Secret Protection Act (Decree)

Disclosure of Business Secrets, etc.

B. Occupational breach of trust

1.(a) A

2.(a) B

Stopon iron (prosecution), yellow-popon, Kim Jong-kop, Lee Jong-kak, Kim Jong-kak, Park Jong-kak (Public trial)

Law Firm Dongin, Attorneys Cho Jae-ju, Maho, Lee Jin-ho, Lee Jin-ho

(For all the defendants)

Attorney public document (for all the defendants)

Attorney Yoon Sung-ho (for the defendant A),

July 10, 2018

Defendant A shall be punished by imprisonment for six months.

Of the facts charged against Defendant A, the point of occupational breach of trust between April 2014 and May 2014, and the violation of the Unfair Competition Prevention and Trade Secret Protection Act and each subsequent violation of the Unfair Competition Prevention and Trade Secret Protection Act around April 2014 and May 2014, and Defendant B, respectively, shall be acquitted.

Punishment of the crime

From June 1, 2010 to January 24, 2014, Defendant A served as a technical business director in Ansan-si D Equipment Manufacturing Chain Co., Ltd. (hereinafter referred to as “damage Co., Ltd.”), Inc. (hereinafter referred to as “damage Co., Ltd.”). From May 2014, Defendant A served as a technical business director from May 1, 2014 as the same company.

B served in G Co., Ltd. (former H) from December 12, 1986 to February 2, 2013, but from March 2013 to September 2014, the I Co., Ltd., a manufacturer company of automobile transition period, has been in charge of vehicle inspection and test. From January 2015 to September 2014, the J Co., Ltd., a manufacturer company of automobile engine and transition period has worked in the automobile test team.

Defendant A was working as a technical business director for the victimized company, and thus, Defendant A did not leak major business assets of the victimized company to other companies, and there was a duty to prevent other companies from using them without the consent of the victimized company.

Nevertheless, around July 16, 2013, Defendant A sent the above Defendant’s e-mail (K) files to L (M) and B (N), a researcher of the I limited liability company, which is the manufacturing company of China, with the e-mail of the above Defendant, containing the data containing the “the creation value of both products, such as the O6 short-term accelerator in the damaged company’s business principal assets, the e-mail of the damaged company, the diver margin of the D equipment for the P changeer in Australia, the e-mail of the P changeer in Australia, the e-mail of the damaged company.”

Accordingly, Defendant A obtained financial benefits equivalent to the market value of the above business assets from L et al. and suffered financial losses equivalent to the same amount in the damaged company.

Summary of Evidence

1. The defendant A's partial statement

1. Each legal statement of witness R, S and T;

1. The mail sent to L by A;

1. Q files accompanied by a email;

[When an employee of a company takes out data without permission from a competitor company or its intent to use the data for his/her own interest as a crime of occupational breach of trust, the said data may not be obtained without going through a holder because it is not disclosed to many and unspecified persons at least, even if it does not necessarily constitute trade secret, and the holder is a considerable time, effort, and cost for the acquisition or development of data, and thus constitutes a "major asset for business" to the extent that it can obtain competitive benefits (see, e.g., Supreme Court Decision 2009Do3915, Jun. 30, 2011);

위 법리에 비추어 이 사건을 보건대, ① 피해회사는 D장비 제작업체로서 검사의 기준이 되는 값은 수많은 시험가동과 시행착오를 거쳐 최적화된 것이므로 이는 피해회사의 영업에 큰 영향을 미치는 것인 점, ② 적정한 검사값이 주어지지 않으면 수율이 떨어지거나 불량률이 올라가는 문제가 발생하여 D장비 제작을 의뢰하는 고객사로서는 적절한 검사값을 설정할 수 있는 능력을 발주의 주요한 고려요소로 볼 것이므로 이것이 유출될 경우 경쟁회사에게 수주를 빼앗길 수 있는 점, ③ 피해회사는 고객사로부터 검사기준서를 받아 피해회사가 고객사와의 협의를 통하여 독자적으로 검사값을 만들거나 제공된 검사값을 피해회사가 시행착오나 노하우를 통해 적절히 수정한 것이므로 피해회사가 이를 만드는 데 상당한 시간과 노력이 소요되었을 뿐만 아니라, 충분한 경험이 없다면 이를 적절히 설정하는 것이 불가능하다고 보이는 점, ④ 피해회사는 고객사의 검사값을 비밀로 관리할 채무가 있는바, 위 피고인이 이를 유출하면 피해회사가 손해배상책임을 부담할 가능성도 있는 점, ⑤ 위 피고인도 L 등에게 메일을 보내면서 '위 범행이 발각되면 위 피고인이 감옥에 가게 된다.'라고 기재하였고(위 피고인의 변호인은, 이를 이메일에 포함되는 일반적인 문구라고 주장하나, 그러한 문구는 '권한 없는' 수신자가 이를 유출할 경우 '수신자'가 법적 책임을 부담한다는 것으로서, 위 피고인이 기재한 문구와는 전혀 취지가 다르다), 수신자인 L도 '비밀로 관리하겠다(I will keep this security). I에서 뵙기를 바란다(I wish I could see you in I).'라고 답신한 점 ⑥ 위 피고인은 자신이 위 검사값을 유출하기 전에 이미 피해회사가 I에 이를 유출한 적이 있고, B도 위 검사값을 가지고 있었다고 주장하나, 만약 I가 이를 이미 가지고 있었다면 이를 요청할 이유가 없고, B도 위 검사값은 위 피고인의 이 사건 범행으로 취득한 것이라고 진술한 점, ⑦ 위 피고인은 당시 I 현장에서 문제가 발생하여 피해회사의 직원이 도움을 요청하여 이를 발송한 것이라고 하나, 위 피고인도 위 검사값을 요청한 것은 피해회사의 직원이 아니라 위임을 인정하는 점 등을 종합하면 위 범죄사실을 인정할 수 있다.]

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Defendant A: Articles 356 and 355(2) of the Criminal Act; the choice of imprisonment

Reasons for sentencing

Defendant A, even though he knows that he would be dismissed as he voluntarily, committed the instant crime with the trust of the victimized Company. Nevertheless, Defendant A, at the time when the investigating agency up to this court, changed the horses, rather than criticism of the victimized Company, did not completely repent his mistake (see, e.g., no color exists to see that the portion of innocence is recognized as tort liability against the victimized Company at least in civil cases, and the circumstances after committing the crime are poor). Defendant transferred the business assets of Korea’s company to Chinese competitors, thereby causing damage to the national interests of the Republic of Korea. The value of the above business assets seems to be nonexistent.

However, although the defendant's primary crime is the defendant's primary crime, the damaged company argues that the damage caused by the crime of this case is more than a million won, it is insufficient to prove the specific amount of damage, the defendant's age, occupation, character and conduct, environment, and all the sentencing conditions in the records, such as the circumstances before and after the crime of this case, shall be determined by taking into account the following factors.

The acquittal portion

1. Summary of the facts charged

A. Defendant A

1) Occupational Breach of Trust and Violation of Unfair Competition Prevention and Trade Secret Protection Act (Disclosure of Business Secrets, etc.)

A) Defendant A was working as a technical business director for the victimized company, and thus, Defendant A was on duty to prevent another company from using the trade secrets of the victimized company without the consent of the victimized company.

Nevertheless, around July 16, 2013, Defendant A sent the Defendant’s e-mail (K) files, which are trade secrets of the victimized company, to L (M) and B (N), a researcher of the I limited liability company, China, with the knowledge that the trade secrets will be used in a foreign country (data containing the value of the creation of both products, such as the e-mail of the damaged company’s trade secrets from the victimized company’s e-mail) (Provided, That with respect to breach of duty among the facts charged above, the aforementioned part of the aforementioned file, which was found guilty of the crime of occupational breach of trust is excluded).

As a result, Defendant A knew that the trade secret will be used in a foreign country for the purpose of obtaining improper profits or causing damage to the owner of the trade secret, and, at the same time, Defendant A disclosed the above trade secret to a third party, obtained economic benefits equivalent to the market value of the above trade secret from L et al. and suffered economic damage equivalent to the above amount.

B) Defendant A signed a security management provision to the effect that the victimized company does not disclose trade secrets while in office and does not find the same company for three years after retirement, as well as that Defendant A signed a written oath that the victimized company does not divulge trade secrets while leaving the injured company around January 24, 2014. As such, Defendant A had a duty to refrain from shipping trade secrets to the outside at the time of retirement in accordance with the above security management regulations and the obligations under the said written oath.

Nevertheless, Defendant A returned all lads, etc. used for business purposes at the time of leaving the damaged company on January 24, 2014, but returned the lads, etc., Defendant A, referring to the business of the victimized company’s use of the trade secret in the future, and obtained unjust profits or provided the said trade secret to the competitor of the victimized company, and acquired the trade secret of the victimized company by using the lads, such as the “U” (limited to the formation of W equipment air pressure circuits produced by the victimized company from China V) file, which is the trade secret of the victimized company, at the end of the following: (a) the files listed in attached Table 1 of the date of crime, such as the file, which is the trade secret of the victimized company, (b) the damaged company, in order to obtain unjust profits or cause damage to the victimized company; and (c) the damaged company’s trade secret by copying

As a result, Defendant A acquired a trade secret of the damaged company with the knowledge that the trade secret will be used in a foreign country for the purpose of obtaining improper profits or causing damage to the victimized company, and at the same time acquired the market value of the above trade secret and suffered property damage equivalent to the above amount of the trade secret.

2) Violation of the Unfair Competition Prevention and Trade Secret Protection Act (Disclosure of Business Secrets)

A) On January 3, 2015, Defendant A disclosed the trade secrets of the victimized company, knowing that the trade secrets were to be used in a foreign country in order to obtain unjust profits or to inflict damage on the victimized company in the same manner as shown in the attached Table 2, at the F Limited Office located in X of the Free Trade Examination Zone X of China, using the Defendant’s e-mail (K) files to Y (Z) a trade secret of the victimized company, a party to the victimized company, as well as by transmitting the files of “A” (CAD data) (hereinafter “D D D D D D D D DD data), which is a trade secret of the victimized company.

B) On July 23, 2014, Defendant A used the trade secret of the victimized company with the knowledge that the trade secret will be used in a foreign country for the purpose of obtaining unjust profits or causing damage to the victimized company, as shown in attached Table 3, from the above date and time to March 7, 2015, by making a technical proposal to be sent to “AC” as an employee in charge of F limited construction, who is an employee in charge of AB technology in China, for the receipt of contracts for F-limited construction.

(C) On March 5, 2015, Defendant A acquired a trade secret of the victimized company with the knowledge that the trade secret will be used in a foreign country for the purpose of obtaining unjust profits or causing damage to the victimized company by receiving the “AF” (AG drawings files), a trade secret of the victimized company, by e-mail, from AE, who was an employee of the victimized company, for the purpose of reference in manufacturing D equipment.

B. Defendant B

around July 16, 2013, Defendant B received from Defendant B a trade secret of the victimized company by the e-mail (N) from Defendant B, as seen above, the above “ Q” file was transmitted.

As a result, Defendant B acquired a trade secret of the victimized company with the knowledge that the trade secret will be used in a foreign country for the purpose of obtaining improper profits or causing damage to the victimized company.

2. Determination

A. Judgment on the defendants' violation of the Unfair Competition Prevention and Trade Secret Protection Act

1) The term "trade secret" under Article 2 subparagraph 2 of the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter referred to as the "Unfair Competition Prevention Act") means any production method, sale method, and other technical or managerial information useful for business activities, which is not known to the public and has independent economic value, and which is maintained in secret by reasonable efforts, and "it shall be maintained in secret by reasonable efforts" means a state in which it is recognizable that information is maintained and managed in secret objectively, such as where it is possible to recognize that the information is secret in light of the human and physical conditions of a person holding the trade secret, and where it is displayed or notified that the information is confidential, and where it is recognized that the information is maintained and managed in secret, such as imposing restrictions on access to the information or access methods, or obligation to keep secret on the person who has access to the information (see Supreme Court Decision 2011Do3657, Jun. 28, 2012)

2) Comprehensively taking account of the following circumstances, even if the information and drawings of the instant facts charged, etc., submitted by the prosecutor alone, have no merit and economic feasibility as a trade secret under the Unfair Competition Prevention Act, it is difficult to deem that the instant facts charged meet the requirements for “confidentiality required as a trade secret under the Unfair Competition Prevention Act,” and there is no other evidence to acknowledge

① Although external leakage is possible through technical measures in the case of design drawings managed by computers, the victimized company did not take any particular technical measures on the design drawings file itself (a claim that the damaged company takes at least seven billion won on the part of the victimized company that the damaged company takes such measures, etc., but it cannot be deemed excessive if the damaged company’s assertion is insufficient on the scale of damage).

② Although the damaged company stored the design drawings, etc. in the NaS, most of the UN notes shared, and did not seem to have controlled the storage of the design drawings, etc. separately in the personal computers, etc., and the reproduction and transmission of them did not properly control them. Defendant A appears to have been easily transmitted the design drawings, etc. upon request from the UN, and did not appear to have been managed by the security manager, etc. as to which file is transmitted. The injured company asserted that “business is most important, so the above Defendant in charge of the business is bound to request.” However, this cannot be said to have made a reasonable effort to maintain and manage trade secrets.

③ Defendant A did not appear to have any process to prevent the use of non-authorized storage device, or to check which data were stored in the storage device, after storing design drawings, etc. in the outer humd.

④ At the time of retirement, Defendant A returned to the damaged company, and the victimized company did not take sufficient measures to confirm the fact that the design drawing, etc. was stored in the outer dynasium and subsequently returned the outer dynasium to Defendant A.

5. It is unclear whether a company has taken any measure to maintain and manage the above quantity of materials, such as the value of creation, etc., in addition to the general information, such as control of company access, receipt of a written oath, education for security, etc.

B. Determination as to Defendant A’s occupational breach of trust around July 16, 2013

In addition to the above portion found guilty, "AH", "AJ", and "AJ" have the parts of "AH", "AH" and "AJ", among them, it is clear that "AH" is not a business asset of the damaged company, and "AI" includes the creation value related to "H". "AI has no changed part of the damaged company, and it is unclear whether it has been acquired in the damaged company, whether it has been acquired in the H, and whether it has been acquired within the H, and "AJ" is irrelevant to the damaged company of the German J company, and therefore it is difficult to recognize that each of the above sets is not an occupational breach of trust (However, in light of the written indictment, it is clear that the prosecutor "AH" and "AJ" were intended not to prosecute the above part of the trial, but the language of the above defendants is not clear, and the judgment of innocence was made in order to determine whether the above defendants were innocent or not.

C. Determination on Defendant A’s occupational breach of trust around April 2014 through May 2014

The subject of the crime of occupational breach of trust shall be in the position of administering another person’s business. Therefore, if a company employee divulges a trade secret or major business asset to a competitor or ships it out without permission for the purpose of using it for his own interest, the person who administers another’s business and takes it out or out in violation of his/her duties, and thus, the crime of occupational breach of trust may be committed at the time of outflow or release. In addition, even in cases where a company employee’s lawful removal of a trade secret, etc. does not constitute the crime of occupational breach of trust, if the company employee disclosed the trade secret, etc. to a competitor company, or did not return or discard it for the purpose of using it at the time of withdrawal, even though he/she was obligated to return it to the competitor company or to discard it for his/her own interest (see, e.g., Supreme Court Decision 2006Do9

However, barring any special circumstance after the withdrawal of a company employee, the retired company employee cannot be deemed to be in the position of dealing with another person’s business in the crime of occupational breach of trust, and even if the company divulges or uses the trade secret not returned or discarded to the competitor for his own interest, it is nothing more than the already constituted act of occupational breach of trust. Thus, aside from whether the leakage or use constitutes the crime of violation of the Unfair Competition Prevention and Trade Secret Protection Act (Disclosure of Business Secrets, etc.), it shall be deemed that there is no room for constituting a separate crime of occupational breach of trust (see Supreme Court Decision 2017Do3808, Jun. 29, 2017).

In light of the aforementioned legal principles, this part of the facts charged is that Defendant A returned the outer humd used by the victimized Company on or around January 24, 2014, and then acquired trade secrets by restoring the files returned from the outer humd from the outer humd to the said external humd from around April 2014 to May 2014. The above Defendant already retired from office on or around January 24, 2014, and even after retirement, did not find any circumstance to recognize that there was a fiduciary relationship between the victimized Company and the said Defendant and the victimized Company ( simply simply preparing the written humd). The mere fact that the Defendant prepared the written humd cannot be deemed as maintaining a fiduciary relationship formed at the time of the Defendant’s employment with the victimized Company or establishing a new fiduciary relationship with the Defendant after his retirement, and thus, the crime of occupational breach of trust cannot be established against the said Defendant.

3. Conclusion

Therefore, among the facts charged against Defendant A, the charge of occupational breach of trust (excluding the part which found the Defendant guilty of the facts charged in the market) and the violation of the Unfair Competition Prevention Act on July 16, 2013 falls under the absence of proof of a crime and thus, a not-guilty verdict should be rendered under the latter part of Article 325 of the Criminal Procedure Act. However, inasmuch as the Defendant was found guilty of occupational breach of trust in the judgment that is within the scope of the same facts charged or in the ordinary competition relation, the order does not separately render a verdict of innocence. From April 2014 to May 2014 among the facts charged against Defendant A, the charge of occupational breach of trust does not constitute a crime of occupational breach of trust under the former part of Article 325 of the Criminal Procedure Act, since it constitutes a case where there is no proof of a crime, and the facts charged against Defendant B constitutes a case where there is no evidence of a crime, and thus, the judgment is ordered to be acquitted under the latter part of Article 325 of the Criminal Procedure Act.

Judges Kim Jong-ju

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.