Defendant

Defendant

Is Earsen

Law Firm Shin & Yang, Attorneys Kim Jong-soo et al.

Seoul Western District Court Decision 2005Ma747 Decided June 15, 2006

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for six months.

However, the execution of the above punishment shall be suspended for two years from the date this judgment became final and conclusive.

Seized LG CDs (No. 1) shall be confiscated.

1. Summary of grounds for appeal by the defense counsel;

A. Error of mistake

The nine documents listed in the attached list of crimes (attached Form 2) of the judgment of the court below against which the defendant was indicted as trade secrets obtained do not constitute trade secrets of non-indicted 1 corporation, and the defendant had already been aware of the contents by directly preparing the above documents, etc., and thus it does not constitute an illegal acquisition without any evidence to prove that the defendant used the above documents or divulged them to a third party. In addition, the court below erred by misapprehending the fact that there was no evidence to prove that there was no purpose of obtaining unjust profits or causing damage to the non-indicted 1 corporation, and thus, the court below convicted the defendant of the facts charged of this case.

B. Legal principles

The act of copying a computer file already known to him does not constitute an unlawful acquisition of trade secrets subject to the punishment of Article 18(2) of the Act on the Prevention of Unfair Competition and the Protection of Trade Secrets, and the Defendant did not have any awareness that the aforementioned act would be punished, and there was no justifiable ground for misunderstanding, the lower court erred by misapprehending the legal doctrine, thereby convicting the Defendant of the facts charged in the instant case.

C. Unreasonable sentencing

In light of the fact that an employee’s copying of documents prepared by him while leaving his job and seeing the work after leaving his job is ordinarily being conducted, and that the Defendant obtained unjust enrichment or did not cause serious damage to Nonindicted Stock Company 1, the sentence imposed by the lower court (two years of suspended execution in October) is too unreasonable.

2. Judgment on the assertion of mistake of facts

(a) Basic facts;

According to the evidence duly admitted by the prosecutor after examining evidence, the defendant worked as the head of the overseas marketing team of Nonindicted Co. 1 (hereinafter “victim Co. 1”) mainly engaged in providing consulting services on the overseas sales of mobile games and Internet contents from August 31, 2001 to August 21, 2004, and performed the affairs of market research for export, excavation of overseas data processing, counseling, customer management, export contract progress and contract preparation. Employees working at the victimized Co. 4 were the representative director who is the complainant and the defendant, and most of the defendants were working for the victimized Co. 3, the defendant did not separately impose the duty of confidentiality on the defendant according to the form of work handled by the defendant. The defendant did not take such measures as restricting the change of position to the same company, or restricting access to certain important information, while the victimized Co. 4 was mainly engaged in the development of the mobile game from around 31, 200 to around 204, and the defendant concluded a contract with Nonindicted Co. 24, Inc. 2009 to enter the Korea Game Association.

(b) argument that it does not constitute trade secrets;

Trade secrets refer to the production method, sale method, and other technical or managerial information useful for business activities, which are not known generally, has an independent economic value, and has been maintained and managed as confidential by considerable effort, so the documents listed in the separate list of crimes shall be deemed as corresponding.

(1) As to the [Attachment 1] Moble Game Business Proposal (No more than 206 pages of investigation record) and No more than 9 “a description of Nonindicted Company 2’s handphone-type game contest” (no more than 465 pages of investigation record)

According to the above evidence, "Mole Game Project Proposal" is a document introduced by the injured company to its customers, and it contains five domestic companies' overseas expansion through cooperation with the injured company, the summary of the injured company's contract, the hand set, the forecast profit, the country of the injured company's country, the north America, the Europe, and the third world market, and there is a secret indication such as "Priv Rate ?" at the end of each document. On the other hand, the injured company's past and present homepage introduced the outline and core products of the injured company's domestic and foreign companies' use of the business secret, but it does not contain specific contents such as the contents of the contract with the injured company, and the statement that "non-indicted 2 corporation's use of the business secret" is not a confidential statement that the injured company's use of the business secret is not a trade secret, and it is not a trade secret declaration that the injured company's use of the document's use of the attached document's use of the attached document's use of the attached document's use of the business secret.

(2) As to the [Attachment 2] Business Implementation Plan for Nonindicted Co. 2’s Business Implementation Plan for Nonindicted Co. 2” (Investigation Records No. 222), No. 3 (“Investigation Records No. 227 pages), No. 4 (“Investigation Records No. 234 pages), No. 7 “Agreement on the Export of Handphone Game with Nonindicted Co. 7” (Investigation Records No. 426 pages) and No. 8 “Agreement for Negotiations with Nonindicted Co. 8” (Investigation Records No. 439 pages)

According to the above evidence, “business implementation plan for Nonindicted Co. 2” was written on Nonindicted Co. 2’s marketing plan for overseas expansion and 40 companies located in Europe, and Nonindicted Co. 2 attached Form 47 and attached to Nonindicted Co. 2’s name and Internet address. Nonindicted Co. 6’s business implementation plan for scrap 8 was written on Nonindicted Co. 2’s marketing agreement with Nonindicted Co. 7 and written on Nonindicted Co. 8’s business execution plan, and Nonindicted Co. 2’s business execution plan was written on Nonindicted Co. 7’s business execution plan, which was written on Nonindicted Co. 8’s business execution plan for Nonindicted Co. 2’s business execution plan. In light of the fact that there were no economic value of Nonindicted Co. 3’s business execution plan for Nonindicted Co. 7’s business execution plan, and that there was no general value of “the foregoing business execution plan for Nonindicted Co. 6 Co. 2’s business execution plan for overseas expansion,” and that the damage Co. 2 and the present status of “the damage Co. 7’s business execution plan.

(3) As to the [Attachment 5] Report on Counseling Report (No more than 258 pages of investigation records) and No less than 6’s business trip report (no more than 411 pages of investigation records)

According to the above evidence, the "counseling report" is an internal document prepared by the defendant to provide consultation for the export of mobile games with foreign enterprises and to report the result thereof. Now 6, "China North Korean border and injured business trip report" is an internal document prepared by the defendant to participate in and report the result to the overseas export counseling conference held by the Korea Software Promotion Agency in North Korea's injury to China. Each of the above reports is a summary of the counseling company, the contents of counseling, the distribution of profits, and there is no statement indicating that the documents are confidential, although there is a future direction of business promotion. In light of the above facts, each of the above documents (in particular, the contents of counseling and the direction of future business promotion) contain some items to be referred in the case where the competitor intends to engage in transactions with the counseling company indicated in each of the above documents, but it is difficult to view each of the above documents as business information with independent economic value, and there is no circumstance that the injured company has made considerable efforts to keep secret. Thus, each of the above documents does not constitute trade secrets.

(c) argument that it does not constitute an unjust acquisition;

According to the basic facts, it is recognized that the defendant, as a working person of the victimized company, was involved in the preparation of each document listed in the separate list of crimes, and left from the victimized company to non-indicted 4 corporation, and then copied the computer files of each document listed in the separate list of crimes used by him/her to CD. As seen in the following, as long as the defendant had already known the contents of each document "the purpose of obtaining unjust profits or losses" at the time of copying the computer files of each document listed in the separate list of crimes, even if he/she had already known the contents of the document, it does not interfere with the establishment of the crime of violation of Article 18 (2) of the Act on Prevention of Unfair Competition and Protection of Trade Secrets, and the crime of violation of Article 18 (2) of the Act on Protection of Trade Secrets and Protection of Trade Secrets does not require any further use or leakage to a third party, as long as he/she had already acquired a trade secret useful to the company to obtain unjust profits or cause losses to the company (this case also does not require any evidence that the defendant has used or divulged each document recorded in the separate list of crimes.

(d) argument that there was no intention to obtain, or incur, unjust benefits.

According to the basic facts, the defendant, while retired from the victimized company and expressed his intention to resign from the injured company to the non-indicted 4 corporation whose main type of business is similar to that of the victimized company, entered Sundays where the complainant does not work at work, and mainly stored in his own computer as related to the business of the non-indicted 4 corporation, and copied the computer files of the documents in the annexed crime list, which were stored in his own computer, and stored them in CD and stored them in the computer received from the non-indicted 4 corporation. It is recognized that the defendant was engaged in the same business as when he works for the victimized company in the non-indicted 4 corporation. According to the above acknowledged facts, it can be sufficiently recognized that there was the purpose of gaining unjust profits or causing loss to the company.

3. Judgment on misapprehension of legal principles

A. The defense counsel asserts that an act of punishing a person under Article 18(2) of the Act on the Prevention of Unfair Competition and the Protection of Trade Secrets refers to an act of unlawful acquisition of trade secrets by means of theft, fraud, intimidation, or other unlawful means under Article 2 subparag. 3 (a) of the same Act. However, Article 18(2) of the same Act punishs a person “an act of acquiring or using trade secrets useful to the company or of disclosing them to a third party for the purpose of obtaining unjust profits or causing damage to the company,” and it does not necessarily require an unlawful acquisition date under Article 2 subparag. 3 (a) of the same Act. Thus, the defense counsel’s assertion that the defendant’s act is not an unlawful acquisition

B. The defense counsel argues that the act of the defendant's act constitutes a mistake in law because he/she did not recognize that he/she acquired trade secrets by copying computer files concerning the business status of the company with knowledge of the contents of his/her work and transaction information, etc., but Article 16 of the Criminal Act provides that his/her act of misunderstanding that his/her act does not constitute a crime under the law shall not be punishable only when there are reasonable grounds for misunderstanding. However, it is generally a case where a crime is committed, but it is not punishable if there are justifiable grounds for misunderstanding that his/her act does not constitute a crime under the law in his/her special circumstances. The defense counsel's above assertion is generally a crime, but it is not a mistake for misunderstanding that he/she does not constitute a crime under the law, but merely did not know that he/she does not constitute a crime under the law if there are special circumstances of the defendant, and thus

4. Conclusion

Therefore, the lower court erred by misapprehending the facts and finding the Defendant guilty of this part of the charges, even though the document Nos. 2 through 8 of the annexed crime list does not constitute trade secrets, so the lower court, without further examining the grounds for appeal of unfair sentencing by the attorney, has become unable to maintain any further.

Therefore, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, since the appeal by the defendant is partially well-grounded, and it is decided as follows.

The summary of the criminal facts and evidence of the defendant recognized by this court is as follows, except for the case where the court below copied a total of nine documents, such as the “Moble Game Business Proposal”, in the facts constituting the crime in the judgment below, as shown in the attached Table Nos. 1 and 9, to the CD, and then copied the documents listed in the attached Table Nos. 1 and 9 to the CD, and then changed to the CD, and therefore, it is identical to the corresponding column of the judgment below. Thus,

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

Article 18 (2) of the Act on the Prevention of Unfair Competition and Protection of Trade Secrets. Article 18 (2) of the Act on the Protection of Trade Secrets.

1. Commercial competition;

Articles 40 and 50 of the Criminal Act (Punishment to be imposed on a violation of the Unfair Competition Prevention and Trade Secret Protection Act, for which a proposal for a Moble Game Business, which has been acquired with a heavier penalty)

1. Suspension of execution;

Article 62(1) of the Criminal Act (Working Consideration within and after the Criminal Act)

1. Confiscation;

Article 48 (1) 1 of the Criminal Act

The crime of this case is a case of leaving the trade secrets of the victimized company and the victimized company when it moves out of the same company. The victimized company is expected to have considerable damage to the company at all times, and the defendant is not found to have obtained particular economic benefits in this case, and the defendant's age, character and conduct, background of the crime, means and result of the crime, and the circumstances after the crime shall be determined in consideration of the order.

Of the facts charged in this case, the summary of violation of the Unfair Competition Prevention and Trade Secret Protection Act regarding the documents listed in the separate sheet 2 through 8 is as follows: “The defendant works as the head of the overseas marketing team of the victim non-indicted 1 corporation (representative non-indicted 3) who is the mobile game, Internet contents sales consulting company from August 31, 2001 to August 21, 2004, and takes charge of market research, excavation, counseling and customer management, progress of export contract and preparation of contract, etc.; and on August 25, 2004, the defendant was released from the office of overseas business of the non-indicted 4 corporation (representative non-indicted 9) who is software development company to participate in the overseas exhibition, market research, management, etc., and was found not guilty of the defendant's trade secrets from the above list 200 to the defendant's office's counter-indicted 4 corporation or mobile game work's overseas markets, and the defendant was found not guilty of the defendant's key to the defendant's secret from the victim's office.

[Attachment Offense List omitted]

Judges Park Jae-chul (Presiding Judge) Kim Jong-ho