[1] Specific meaning of "trade secret" requirement under Article 2 subparagraph 2 of the former Unfair Competition Prevention and Trade Secret Protection Act

[2] In a case where Gap corporation's overseas business team leader Eul was employed by Gap corporation as a mobile game development company Eul, which entered the strategic business partnership agreement with Gap corporation after Gap retired from Gap corporation, and was made by copying documents stored in Gap corporation's company's company's computer for the purpose of using them for the business, the case holding that some of the documents constituted Gap corporation's trade secrets by being recognized as economic usefulness and confidentiality

[3] Meaning of “unfair means” under the former part of Article 2 subparag. 3(a) of the former Unfair Competition Prevention and Trade Secret Protection Act, and whether it may be deemed that a person who unlawfully acquired a trade secret causes damage to the owner of the trade secret even if the person did not actually use the trade secret (affirmative)

[4] The case holding that in a case where Gap corporation's overseas business team leader Eul was employed by Gap corporation as Gap corporation after Gap retired from Gap corporation, and then brought about Gap corporation's trade secret documents by copying Gap corporation's trade secret documents for the purpose of using them for business affairs, it constitutes a trade secret infringement, and as long as Eul's act of improper acquisition of trade secret was committed, Eul corporation's trade secret owner infringed Gap corporation's business profit

[5] The case holding that in a case where the head of the overseas business team Eul, who was employed by Gap company as Gap company after Gap company retired from Gap company, and copied the trade secrets documents of Eul company, and stored and stored them in the Nowon-gu computer paid by Byung company, the case holding that it is difficult to readily conclude that Byung company's representative director, etc. conspired to violate Eul company's trade secrets or acquired and used trade secrets documents, and that Byung company's employer liability is not recognized

[1] Article 2 subparagraph 2 of the former Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 8767 of Dec. 21, 2007) refers to the production method, sale method, and other technical or managerial information useful for business activities, which has been kept confidential by considerable effort. The phrase "not known" refers to the information that is not obtained from a holder because it is not known to many and unspecified persons, such as the publication, etc., because it is not known to the general public. The term "in the case of an independent economic value" refers to the information holder's use of information that can benefit from competition, or requires considerable expenses or effort for the acquisition or development of information, and the phrase "in the case of keeping secret by considerable effort" refers to the information holder's expression or notification that can be perceived as a secret, and the fact that it is objectively recognizable and managed as a secret, such as restricting access to the information or imposing access to the information, or imposing a secret on a person who has access to the information.

[2] In a case where Gap corporation's overseas business team leader Eul, who runs a business of selling mobile contents and mobile games developed by Gap company overseas, retired from Gap company, and entered Byung corporation, a mobile game development company, which is a strategic alliance with Gap company, and brought about copies of documents stored in Gap company's company's business computer used for the purpose of using them for the business, the case holding that the court below erred in the misapprehension of legal principles in holding that some of the documents constituted Gap company's trade secrets even though they are recognized as economic usefulness and confidentiality, and therefore, they do not constitute Gap company's trade secrets

[3] The term "unfair means" in the former part of Article 2 subparagraph 3 (a) of the former Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 8767 of Dec. 21, 2007) refers to not only acts constituting crimes under the Criminal Act, such as theft, deception, threat, etc., but also all acts or means contrary to good customs and other social order that are equivalent to the above acts in light of the principles of good order and fair competition, such as maintenance of sound trade order, such as inducement of a violation of a duty of confidentiality, or inducement of such violation. In addition, regardless of whether a person who unlawfully acquired a trade secret actually uses the acquired trade secret, the person who unlawfully acquired the trade secret should be deemed to have inflicted damage on the owner's business interest by impairing

[4] In a case where Gap corporation Gap corporation's head of overseas business team who operates a business of selling mobile contents and mobile games developed by Eul company overseas and brought Gap corporation's trade secret documents to be copied for the purpose of using them for the business in charge after Gap retired from Gap corporation's office and entered Eul corporation with Gap corporation with a strategic business partnership agreement, the case held that the court below erred in the misapprehension of legal principles, etc. in holding that since Eul's trade secret documents did not constitute "trade secret" under subparagraph 2 of Article 2 of the former Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 8767 of Dec. 21, 2007) and the above trade secret documents did not constitute "trade secret" under subparagraph 2 of Article 2 of the former Unfair Competition Prevention and Trade Secret Protection Act, and it is difficult to recognize that Gap corporation's business profit was infringed.

[5] In a case where Gap corporation Gap corporation's head of the overseas business team, who operates a business of selling mobile contents, etc. developed by Eul company in a foreign country, was employed by Eul corporation after Gap retired from Gap corporation to Eul corporation, and copied Gap corporation's trade secret documents and stored and stored them in the Nowon-gu computer paid by Byung company, the case holding that it is difficult to readily conclude that Byung corporation's representative director and planning director conspired to commit the act of infringement of Eul's trade secret or acquired and used trade secret documents, and that Eul's act of infringing Eul's trade secret was not related to Eul's business affairs, and therefore it is difficult to recognize Byung

[1] Article 2 subparagraph 2 of the former Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 8767 of Dec. 21, 2007) / [2] Article 2 subparagraph 2 of the former Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 8767 of Dec. 21, 2007) / [3] Article 2 subparagraph 3 (a) of the former Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 8767 of Dec. 21, 2007), Article 2 subparagraph 2 and subparagraph 3 (a) of the former Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 8767 of Dec. 21, 2007) / [4] Article 2 subparagraph 2 and subparagraph 3 (a) of the former Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 8767 of Dec. 21, 2007) / [5] Article 2 subparagraph 3 (a) of the Civil Act

[1] Supreme Court Decision 2002Da60610 Decided September 23, 2004 (Gong2004Ha, 1693) Supreme Court Decision 2005Do6223 Decided February 15, 2008 (Gong2008Sang, 425) Supreme Court Decision 2008Do3435 Decided July 10, 2008 (Gong2008Ha, 1212)/ [3] Supreme Court Decision 96Da1605 Decided December 23, 1996 (Gong197Sang, 501)

Clovapost Co., Ltd. (Attorney Jeong Sung-il, Counsel for the defendant-appellant)

Defendant 1 and two others (Law Firm Hong, Attorneys Jeong Jong-hee et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2008Na30699 decided January 13, 2009

원심판결 중 피고 1에 대한 제1심판결 별지 목록 기재 제1, 10, 11항 문서 부분을 파기하고, 이 부분 사건을 서울고등법원에 환송한다. 원고의 피고 1에 대한 나머지 상고 및 피고 2, 주식회사 넥슨모바일에 대한 상고를 모두 기각한다. 위 상고기각 부분에 대한 상고비용은 원고가 부담한다.

The grounds of appeal are examined.

1. As to whether each document in the separate list of the judgment of the court of first instance constitutes the plaintiff's trade secret

The term "trade secret" under Article 2 subparagraph 2 of the former Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 8767 of Dec. 21, 2007; hereinafter the "former Unfair Competition Prevention Act") means a production method, sale method, and other technical or managerial information useful for business activities, which have been maintained in secret by considerable effort. Here, "non-publicly known" means that information cannot be obtained ordinarily unless it is obtained through its holder because it is not known to many and unspecified persons, such as where it is actual in the media of publications, etc. (see Supreme Court Decision 2002Da60610 of Sept. 23, 2007). The term "in existence of independent economic value" means that a holder of such information can benefit in competition, or may obtain cost or effort to obtain such information through the use of such information, or that it is objectively possible for the person subject to disclosure or management to have access to such information (see Supreme Court Decision 2008Do6315, Jun. 23, 2005).

원심이 인정한 사실과 기록에 의하면, 피고 1은 2001. 8. 31.부터 2004. 8. 21.까지 국내 업체들과 제휴하여 위 업체들이 개발한 모바일 콘텐츠, 모바일 게임 등을 해외에 판매하는 사업을 영위하는 원고 회사(상시근무자가 대표이사와 피고 1 두 사람임)에서 시장조사, 수출 계약진행 및 계약서 작성 등의 업무를 처리하는 해외영업팀장으로 근무한 점, 원고는 2004. 6.경 모바일 게임 개발업체인 피고 주식회사 넥슨모바일(이하 ‘피고 회사’라고 한다)과 피고 회사의 모바일 게임을 원고 회사가 유럽시장에 판매하고(비독점적 영업권), 피고 회사는 원고 회사가 추천한 업체와의 업무진행은 원고 회사를 경유하여서만 하여야 한다는 내용 등이 포함된 전략적 사업제휴계약을 체결한 점, 피고 1은 원고 회사에서 퇴직한 다음날인 2004. 8. 22. 원고 회사 사무실에서 피고 회사에 입사 후 그 담당업무에 사용할 목적으로 자신이 원고 회사 재직 중 사용하던 업무용 컴퓨터에 저장된 문서 중 제1심판결 별지 목록 기재 각 문서(이하 ‘이 사건 각 문서’라고 한다)를 복사하여 가져간 점, 피고 1은 같은 달 25일 피고 회사에 해외사업실장으로 입사하여 피고 회사로부터 지급받은 노트북 컴퓨터에 위 각 문서를 복사하여 보관한 점, 피고 2는 피고 회사의 기획이사로 근무하면서 위 사업제휴계약에 따른 업무 등을 담당한 점 등을 알 수 있다.

In light of the above legal principles as to whether each of the documents of this case constitutes trade secrets of the Plaintiff Company, first of all, the document of this case is a mobile game business proposal prepared by the Plaintiff Company to introduce himself/herself to its customers, which includes information that would give priority to the construction of an overseas business network, and is likely to include considerable labor force and cost in order to obtain such information. The document is classified as trade secrets of the Plaintiff Company since confidentiality is recognized in view of the fact that Defendant 1 was preparing and keeping the above documents while carrying out the main duties of the Plaintiff Company. Then, the document of this case of Articles 10 and 11 of the document of this case falls under the trade secrets of the Plaintiff Company since it was written in the process of exporting Mcres company's game sales contract with the Plaintiff Company, and its document of this case contains no trade secrets of the Plaintiff Company's major information, such as price maintenance and sale, and its contents are not classified as trade secrets of the Plaintiff Company's product or other similar information, and it constitutes a trade secrets of the Plaintiff Company's product or other similar product of this case.

Nevertheless, the lower court determined that the instant trade secret documents do not constitute the Plaintiff Company’s trade secret. In so determining, the lower court erred by misapprehending the legal doctrine on trade secret documents, thereby adversely affecting the conclusion of the judgment. The grounds of appeal assigning this error are with merit.

2. Whether the Defendants infringed trade secrets and thereby caused damage to the Plaintiff Company

A. As to Defendant 1

The term “illegal means” under the former part of Article 2 subparag. 3(a) of the former Unfair Competition Prevention Act refers to not only acts constituting crimes under the Criminal Act, such as theft, deception, threat, etc., but also all acts or means that are contrary to good morals and other social order corresponding to the above acts in light of the maintenance of sound trade order such as violation of confidentiality or inducement of such violation (see Supreme Court Decision 96Da16605, Dec. 23, 1996, etc.). In addition, it is reasonable to deem that a person who unlawfully acquired a trade secret causes damage to the owner’s business interest by impairing the economic value of the trade secret, regardless of whether it actually used the acquired trade secret.

Examining the aforementioned facts in light of the legal principles as seen earlier, Defendant 1’s act of entering the Defendant Company that concluded a strategic business partnership agreement with the Plaintiff Company after retirement from the Plaintiff Company and then taking them out by copying the instant trade secret documents for the purpose of using them in charge constitutes a trade secret infringement. In addition, insofar as Defendant 1’s act of improper acquisition of trade secrets exists, it shall be deemed that Defendant 1 suffered damages by infringing the Plaintiff Company’s business interest.

Nevertheless, the court below concluded that it is difficult to recognize that the trade secret documents of this case do not correspond to "trade secret" under Article 2 (2) 2 of the former Unfair Competition Prevention Act and infringed the plaintiff's business profit, and dismissed all the plaintiff's claim against defendant 1. In so determining, the court below erred by misapprehending the legal principles on infringement of trade secret and the occurrence of damage caused thereby, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit

B. As to the defendant 2 and the defendant company

According to the facts established above, even though Defendant 1 was aware that he was employed by the Plaintiff Company as the head of the overseas business office of the Defendant Company and stored and stored the instant trade secret documents in the Nowon-do computer that was received from the Defendant Company, it is difficult to conclude that Defendant 2 and the representative director of the Defendant Company conspired to commit the instant trade secret infringement, or acquired and used the instant trade secret documents, solely on the above circumstances, it cannot be deemed that Defendant 1’s act of infringing trade secrets was committed with respect to the execution of the Defendant Company’s business. Thus, it is difficult to recognize the employer’s liability.

Of the reasoning of the court below, the part of the court below's determination that the trade secret documents of this case do not constitute trade secret under Article 2 (2) 2 of the former Unfair Competition Prevention Act and that the business profit of the plaintiff company was not infringed is not appropriate, but the decision of the court below that rejected the plaintiff's claim against the defendant 2 and the defendant company is just, and such error of

3. Therefore, the part of the judgment below regarding the trade secret documents against Defendant 1 is reversed, and that part of the case is remanded to the Seoul High Court. The remaining appeals against Defendant 1 and all appeals against Defendant 2 and the defendant company are dismissed, and the costs of appeal against the dismissed part are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)