In a case where Gap, who is engaged in the manufacture and sale of display and related products, was employed by Eul Co., Ltd. in the business of developing PI (OLED) mobile-oriented OED, which is a prerequisite technology for the mass production, and retired from Gap, and Eul, prepared and submitted a pledge of protection such as trade secrets, etc. including "I will not be disclosed or likely to use trade secrets, etc. known to Eul during the period of two years from the date of retirement, or will not have the status of transfer, winter business, adviser, counsel, or other cooperation with domestic or foreign competitors," and Eul applied for a disposition of prohibition of transfer, etc. for two years from the date of retirement, the case holding that Gap should not enter into a contract of research and development with Eul as a competitor company and its branch, research institute, place of business, affiliate company, etc., which is the competitor company of Eul or its affiliate company, or perform the research and development of the OE in such a way as to provide advice, etc.

A, who is engaged in the manufacture and sale of display and related products, made and submitted a pledge of protection, such as trade secrets, etc., to which “A shall not have any status of transfer, club, adviser, adviser, counsel, or other cooperation with a company which is known during the two-year period from the date of retirement or which is likely to divulge or use trade secrets, etc., which he/she has become aware of during the two-year period from his/her retirement, while engaging in the mobile-oriented OPE development work, including the pre-technical task for development of PI (OLD), which is a pre-technical basis for development of the PI (OLD), at Company B, which is engaged in the manufacture and sale of display and related products.” However, the case where B applied for the injunction of transfer to a company that is located in China prior to the expiration of two years from the date of retirement.

The case holding that the two-year period of prohibition of changing occupation under the above pledge constitutes a juristic act contrary to good morals and other social order, and thus it is difficult to view that the two-year period of prohibition of changing occupation under the above pledge constitutes a juristic act contrary to the good customs and other social order, and thus, Gap's duty of prohibition of changing occupation under the above pledge is null and void, or the period of prohibition of changing occupation is excessively long-term, and thus, Gap should not engage in research and development of the above order of prohibition of changing occupation under the above pledge as it constitutes a juristic act contrary to the good customs and other social order, and thus, Eul is not engaged in research and development of the above order of prohibition of changing occupation under the above pledge, since it is deemed that the two-year period of prohibition of changing occupation under the above pledge constitutes a juristic act contrary to the good customs and other social order and thus, Gap is a competitor company and its business office, branch, research institute, business place, or its affiliate company as its competitor company, or it is employed by the contract for providing advice, etc.

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

Samsung F&P Co., Ltd. (Law Firm Sejong, Attorneys Jeong Jin-ho et al., Counsel for the defendant-appellant)

A debtor (Law Firm Dong, Attorneys Lee Dong-chul et al., Counsel for defendant-appellant)

1. The debtor by August 15, 2019:

(a) be employed by each company and its offices, branches, research institutes, workplaces, or their affiliates listed in the list; or

(b) be engaged in the research and development of organic emitting dives (OLD) methods performed by each of the above companies by entering into an advisory contract, etc.

2. Where the debtor violates the order under paragraph (1), the debtor shall pay 10,000,000 won per day of the act of violation to the creditor.

3. The remaining motion of the obligee is dismissed.

4. The costs of lawsuit shall be borne by the obligor;

The order shall be the same as the order, except for indirect compulsory performance seeking 20 million won per day of the violation.

1. Facts recognized by records, etc.;

A. On May 1, 2010, the creditor is a company engaged in the manufacture, sale, etc. of display and related products. On May 1, 2010, the debtor was employed in Samsung Flexi's Samsung, the creditor's telegraph, and then retired as of August 15, 2017, when working in the OLD platform development team from March 16, 2017.

B. On June 22, 2017, the debtor expressed to the creditor his/her wish to retire on the ground of “employment of a disaster prevention-related business entity and pre-employment of offshore plant.” On June 29, 2017, the creditor asserted that he/she was employed by the shipping company that he/she had been employed by the company that he/she had been employed by the company that he/she was over-the-counter (the date and time of admission are indicated as August 16, 2017), and the Ghana opened the business as of April 1, 2017, and closed the business as of January 26, 2018.

C. On August 15, 2017, the debtor prepared and submitted a written pledge of protection of trade secrets, etc. to the creditor (hereinafter “instant pledge”) to the creditor. The main contents are as follows.

I, in order to protect the business secrets or major business assets which he/she has learned during the period of his/her service in his/her retirement. 1. He/she clearly recognizes that the information on the No. 2. of the attached Table 2. which he/she became aware in the course of performing his/her duties such as the No. 1. A. 2. He/she will not disclose or divulge to his/her competitor or a third party without his/her prior written consent, as well as to maintain confidentiality after his/her retirement. 2. he/she will not immediately return any data recorded in his/her business secrets at the same time as his/her retirement, and will not leak any form of data. 3. he/she may independently or jointly recognize that she has the right to use his/her business secrets, such as the No. 2. 3. It will be recognized that, during the period of his/her service, he/she has the right to return his/her own trade secrets, profit, or other property rights during the period of his/her retirement.

D. On August 21, 2017, a creditor paid KRW 75,280,00 (which is the amount corresponding to the annual salary of a debtor) to a debtor under the pretext of a contract for prohibition of change of occupation.

E. The debtor entered the People's Republic of China at the People's Republic of China on October 18, 2017 with a foreign professional working license issued in the People's Republic of China and resides in the above place.

2. Judgment on the debtor's main defense

The debtor asserts that as an international judgment, the civil jurisdiction over the application in this case is not located in the domestic court.

However, since a creditor is a domestic corporation and a debtor has a domicile in the Republic of Korea, it is obvious that this court has jurisdiction over the application of this case concerning a dispute between a creditor and a debtor, and the debtor has a residence in China, it cannot be deemed that the application of this case is an international judgment where the law of China should be the governing law.

Therefore, this part of the debtor's assertion is without merit.

3. Judgment on the merits

(a) Right to be preserved;

1) Even if there exists a contract of prohibition of change of occupation between an employer and an employee, if such agreement is excessively limited to the worker’s freedom of choosing an occupation, the right to work, etc., which is 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. Furthermore, the determination on the validity of such contract of prohibition of change of occupation should comprehensively take into account the employer’s interests worth protecting protection, the status of employer, the period, area, and occupation of the worker, the period of restriction on change of occupation, the existence of remuneration for the worker, the reason for the worker’s retirement, the public interest, and other circumstances (see Supreme Court Order 2013Ma14

2) Comprehensively taking account of the following circumstances revealed by the purport of the records and the entire examination of the instant case, it is difficult to view that the duty to prohibit transfer under the instant written pledge constitutes a juristic act contrary to good morals and other social order, and thus, the period of prohibition of transfer under the contract is excessively long-term. Therefore, the obligor is not engaged in research and development of OED method conducted by the said company by being employed by each company, its branch, research institute, workplace, or its affiliate as of August 15, 2017, the date of retirement under the instant written pledge, and its employees for two years from August 15, 2017, as of the date of retirement, or by concluding an advisory contract.

A) Whether there is a benefit to protect the creditor

As of April 2017, a creditor accounts for at least 90% of the market share in the mobile-oriented OED method, and a creditor's mobile-oriented OED method production technology has been developed by the creditor for a considerable period of time and it is hard to acquire from the outside. However, in the event such information has been leaked to a competitor, a competitor would have obtained profits from the creditor to omit the error experienced by the creditor and to proceed with the development of technology. Of mobile-oriented OED method, among mobile-oriented OED method, it is reasonable to view that the mobile-oriented OED method is a creditor's mobile-oriented technology protection, including the creditor's profits.

B) Whether the debtor is engaged in the position and duties requiring the prohibition of the change of occupation

The debtor recognized that he was engaged in the same work as attached 2. separate No. 1 in the instant written pledge from May 2010 to September 2015, the debtor was engaged in the work of reducing the thickness of the board of PL3 (Sior Engine) in the status of the creditor company belonging to the U-PJT/BP Development Group from May 2010 to the creditor company in charge of the development of the PI market.

Therefore, in light of the fact that the debtor has worked for a long time at the technology development team related to the PI malm market, it is reasonable to view that the debtor was engaged in the position and work to access the important information on the PIm mass technology corresponding to the interests of the creditor's protection.

C) Whether payment of consideration for the duty of prohibition of change of occupation is made

As seen earlier, on August 21, 2017, a creditor paid KRW 75,280,000 (the amount corresponding to the annual salary of a debtor) to a debtor as stipulated in the instant agreement, under the pretext of a contract prohibiting a change of occupation.

D) the details and other circumstances of the debtor’s retirement;

The obligor asserts that most of the employees working in the obligee company were dismissed before he reached 50 years of age or was actually dismissed due to his voluntary retirement, etc. However, the obligor seems to have decided to retire entirely by his own decision. However, there is no circumstance to deem that the obligee is liable for the retirement of the obligor, such as unfairly compelling the obligor to retire.

E) Appropriateness of the employment prohibition period

In full view of the following facts: (a) the obligor’s duty to prohibit the change of occupation is not sufficient to compensate the obligee for damages only by means of ex post measures such as compensation for damages or removal of the result of the violation; and (b) the obligor appears to be well aware of the non-disclosure information on the PI technology, which is the benefit of protecting the obligee, as an employee who directly experienced in the development of the PI mass mass production technology for about five (5) years prior to his retirement; (c) the obligee provides the obligor with the amount equivalent to the annual annual salary of the obligor as the consideration for the obligor’s duty to prohibit the change of occupation; and (d) the period of prohibition of the change of occupation remaining on the basis of the date of the instant decision is one year and one month, it is difficult to deem that the two-year period

B. Necessity of conservation

1) On September 12, 2017, the debtor asserted that there is no need to preserve because he/she entered into an employment contract with Chengdu COE COE Zlogy (hereinafter “COE”) and performed the work of analyzing the causes of the defect of the free advertising product in the above company located in the Cheongbbhead from October 18, 2017 to present a solution.

However, the following circumstances revealed by the record, namely, BOE (referring to an enterprise group with which each company listed in the list of attached Table 1 as an affiliate; hereinafter “BOE”) is the largest number of employees of the Chinese government, from 2016 to the creditor company, trying to present a marbly condition to the engineers working in the creditor company, and to employ them. COE is a cooperative company located at a distance of about 650 meters from BOE and that supplies BOE free shops. It is a major shareholder of COE and BOE. The number of the companies listed in the document proving health conditions submitted by the debtor to the Chinese government for employment permit is the telephone number of employees of the Chinese government. According to the above court’s request for the payment order, it is clear that the debtor submitted the above amount of benefits to the Chinese government by 201 billion won from 200 billion won to 2017.18.218.

2) In addition, the debtor asserts that the PI mass production technology was completed three years prior to the completion, and that there is no technical value known to other companies. However, the creditor and the debtor are confirmed in the instant pledge that PI mass production process conditions and the physical characteristics and maximum characteristics of the PIFm fall under the creditor's trade secret, and that the creditor company's PI mass production technology development has been continuously conducted by 2018, it is difficult for the debtor to believe that the above assertion is difficult, and there is no other evidence to prove that there is no technical value because the creditor's PI mass production technology is owned by other competitors.

4. Determination as to the application for indirect compulsory performance

In full view of the overall purport of the records and examination of this case, since it is deemed that the debtor is highly likely to violate the order of provisional disposition indicated in Paragraph (1) of this case, the decision of indirect compulsory execution is also made to secure the effectiveness of the order of provisional disposition of this case. However, the amount of indirect compulsory execution shall be determined in 10,000,000 per day of violation in consideration of various circumstances such as the possibility of violation of the order of provisional disposition of this case, the degree of damage suffered by the creditor due to such violation, and the circumstances leading

5. Conclusion

Therefore, the application of this case is justified within the scope of the above recognition, and the remaining application is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment 1] List of Companies: omitted

[Attachment 2] Omitted

Judges Kim Jae-young (Presiding Judge)