[1] Whether the refusal to provide labor due to the collective retirement of workers who do not entirely involve violent means constitutes “comforcing force” under the crime of interference with business (negative in principle)

[2] In a case where Gap corporation's former representative director Eul et al. and defendant Byung et al., who are employees Eul et al. were indicted for interfering with Gap corporation's business by collectively withdrawing from other employees at a similar time without any transfer of business, the case reversing the judgment of the court of first instance which found the defendants guilty on the ground that the evidence submitted by the prosecutor alone cannot be deemed that the defendants conspired with impliedly and explicitly, and led to the suppression and confusion of Gap corporation's free will on the continuation of business

[1] All citizens are fundamental rights guaranteed by the Constitution, including the freedom to choose an occupation (Article 15 of the Constitution), and the freedom to choose such occupation. Thus, if an act of refusing to provide labor by collectively withdrawing from the workplace and obstructing the normal operation of business and causing damage to the business, as a matter of course, would infringe on the fundamental rights guaranteed by the Constitution in principle by excessively expanding the scope of criminal punishment. From this perspective, it is necessary to strictly and carefully interpret the concept of force subject to criminal punishment. From this point of view, refusal to provide labor due to the collective withdrawal of workers who are not capable of violent means, even if it is collectively performed and the process of taking over the business was neglected, it cannot be deemed that the employer’s free will to continue the business is a threat of interference, unless there are any special circumstances that make it difficult for the employer to evaluate that the employer’s free will to continue the business was disturbed and confused.

[2] The case reversing the judgment of the first instance which found the Defendants guilty on the ground that, in case where the former representative director, Defendant B, and Defendant C, who are the employees of Company A, conspired with other employees to leave the company at a similar time without any transfer of business, and were prosecuted for interference with the business of Company A by force, the evidence submitted by the prosecutor alone is insufficient to deem the Defendant B as a co-principal of the crime of interference with business as a co-principal, and that the intention of co-processing and functional control of the act was recognized, and that Defendant C et al. conspired with the latter to leave the company in a successive manner at a time when the company cannot be seen as causing serious confusion or enormous damage to the business operation, such as research, development, production, etc., of Company A, thereby causing serious confusion or confusion, and thus inducing the Defendant C et al. to interfere with the business continuation, the judgment

[1] Article 15 of the Constitution, Article 314(1) of the Criminal Act / [2] Articles 30 and 314(1) of the Criminal Act, Articles 325 and 364(6) of the Criminal Procedure Act

[1] Supreme Court en banc Decision 2007Do482 Decided March 17, 201 (Gong2011Sang, 865) Supreme Court Decision 2010Do7733 Decided October 27, 201 (Gong2011Ha, 2496) en banc Decision 97Hun-Ba23 Decided July 16, 1998 (Hun-Ba29, 660) en banc Decision 2009Hun-Ba168 Decided April 29, 201 (Hun-Ba163, 884)

Defendant 1 and six others

Defendant 7 Other Defendants and the Prosecutor except for Defendant 7 Co., Ltd. (Defendants all)

Original Organisms

Law Firm Songg, et al.

Seoul Central District Court Decision 2008Gohap1227 Decided January 6, 2011

The respective convictions against Defendant 1, 2, 3, 4, 5, and 6 in the judgment of the court below (including the acquittals in the grounds) shall be reversed.

Defendant 1, 2, 3, 4, 5, and 6 of the facts charged in the instant case are not guilty.

The appeal by the prosecutor against Defendant 1, 2, 3, 4, 5, and 6 of the lower judgment against the Defendant 1, 2, 3, 4, 5, and 6 is dismissed.

1. Summary of grounds for appeal;

(a) Defendant 1, 2, 3, 4, 5, 6

1) misunderstanding of facts or misapprehension of legal principles

Defendant 1 did not intend to interfere with the business of Nonindicted Co. 1 by the force of collective withdrawal of the employees of Nonindicted Co. 1. Defendant 2, 3, 4, 5, and 6 (hereinafter “Defendant 2, etc.”) and other employees retired around that time did not instruct or recommend withdrawal.

The five persons, including Defendant 2, etc., retired from Nonindicted Co. 1 in accordance with their respective judgment, and made efforts to minimize the business gap through the business takeover system, and did not intend to interfere with the business by force to withdraw from the group without the business takeover system.

Nevertheless, the judgment of the court below which found the above defendants guilty of obstruction of business is erroneous in the misapprehension of legal principles or misconception of legal principles.

2) Unreasonable sentencing

The punishment sentenced by the court below (Defendant 1: Imprisonment with prison labor of June, Defendant 2, Defendant 3, 4, 5, and 6: Imprisonment with prison labor of six months, suspended execution of two years, community service hours of 80 hours) is too unreasonable.

B. Prosecutor (De Facto misunderstanding and misunderstanding of legal principles)

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

The court below found that the trade secret management nature required to be protected as trade secret under the Unfair Competition Prevention and Trade Secret Protection Act is not limited to system control, but to interpret the meaning of physical control, management control, and physical control. The court below found the defendant's personal PC password, security company's access to security enterprises, night security management, management of technical data by department, management of team leader's responsibility and design drawings for each department, prohibition of exchange of trade secret data between departments, non-indicted 2 and the defendant 6's completion and dissemination of industrial security curriculum, the expression "confral" in the labor contract and resignation clause, and the provision prohibiting divulgence of confidential information in the employment contract and resignation, etc. to recognize that the non-indicted 1 corporation is trade secret against its internal employees. Thus, the court below erred in the misapprehension of the meaning of trade secret management, and the statement made in the investigation agency by the non-indicted 2 did not make every effort. The court below found the defendant 2's computer and the non-indicted 1 corporation's employees were connected to the network, or the defendant 2's computer stol.

2) Occupation of occupational breach of trust

Defendant 2, in light of the fact-finding that Defendant 2 had a CD prior to the general meeting of shareholders on March 30, 2006 by setting a format format of the entire hard disc and establishing an operating system that does not coincide with the actual time before the withdrawal, and it is difficult to view Defendant 2 as having produced the CD on March 7, 2006. Defendant 2, etc. Defendant 2, and Defendant 2, etc., used only part of the files used by Nonindicted Company 1, etc., were used in the CD, because they were the principal who actively led to the crime. Defendant 5 was in possession of the equipment, parts, photographs, etc. in a separate storage device, and Defendant 6 used outside storage devices prior to the withdrawal. However, Defendant 1 and Defendant 2, etc. were found not guilty. In so doing, the lower court erred by misapprehending the legal principles regarding the facts.

3) The point of interference with business due to the deletion of data

Defendant 6 deleted 59,00 files from April 4, 200, which were cut off and deleted from the closed line, and the normal files remaining in the computer used by the Defendants do not coincide. Defendant 3 deleted from the set format in which the files related to the work were stored. Defendant 2, 3, and 4 computers are suspected of being infected with viruses at the same time and format was made. In light of the fact that the Defendants deleted the data by the method of distributing the computer in order to interfere with Nonindicted Company 1’s business, the lower court erred by misapprehending the legal relations and thereby acquitted Defendant 1 and Defendant 2, etc.

2. Determination on the grounds for appeal

A. As to the assertion of misconception of facts or misapprehension of legal principles as to the obstruction of business due to the collective withdrawal without the transfer of the defendant 1, 2, 3, 4, 5, and 6

1) The judgment of the court below

In light of the following circumstances and evidence, i.e., Defendant 2 and other employees of Nonindicted Co. 1 were lawfully adopted and investigated, and the research contract (work) prepared by 5, including Nonindicted Co. 1 and Nonindicted Co. 5, stating that “if employees do not want to extend the labor contract, they shall be notified to the company two months before the expiration of the contract.” Even if five members including Defendant 2 were to retire during the contract period, it is reasonable to view that at least the number of employees of Nonindicted Co. 1 and Nonindicted Co. 5 were to be in charge of the production and resignation, and that at least five employees were to retire from the company, including Defendant 2 and other employees of Nonindicted Co. 5, who were in charge of the production and resignation of the company, and that there was no change in the production and resignation of Defendant Co. 1, Ltd. by 206; Defendant 2 and Defendant 5 were to be in charge of the production and resignation of the company, and each of Defendant Co. 4, supra. 206.

2) Determination of the immediate deliberation

A) Defendant 1

As determined by the court below, we examine whether Defendant 1 can be viewed as a co-principal of the crime of interference with business due to the collective retirement without transfer.

Article 30 of the Criminal Act provides that two or more persons jointly commit a crime. In order to establish a joint principal offender, a joint principal offender requires a fact of implementation of a crime through functional control by a joint doctor, which is a subjective element, by the intention of joint processing and objective requirement. A joint principal offender’s intent is insufficient only if he knows another person’s crime but does not restrain it, and it is not sufficient to accept it, and a joint principal offender’s intent is to jointly commit a specific criminal act with another person’s intent, and to shift one’s own intent by using another’s act (see, e.g., Supreme Court Decisions 97Do1940, Sept. 30, 1997; 2005Do352, Jul. 22, 2005).

However, in light of the following circumstances acknowledged by the record, it is insufficient to view that Defendant 1 is recognized as a co-principal of the crime of interference with business in light of the above legal principles and evidence relations, and there is no evidence to deem otherwise that Defendant 1 bears the responsibility for the crime of interference with business as a co-principal.

① On April 6, 2006, the document “an analysis and countermeasures against the anticipated change in management of Nonindicted Co. 1 was included in part of the files attached to Nonindicted Co. 4 reporting the purchase conditions, financing, etc. to Nonindicted Co. 1’s new president Nonindicted Co. 1’s factory relocation plan to Nonindicted Co. 7 on the main date. It appears that it was made around February 2006. In light of the contents of the above document, in preparation for the replacement of Defendant 1, who was the representative director at the time, the document sought and arranged the countermeasures in accordance with Nonindicted Co. 4’s name, and the part on group withdrawal was not written. If the above document was important for group withdrawal, it cannot be deemed that Nonindicted Co. 4 reported different contents to Nonindicted Co. 7, and was physically stored and managed to the extent that it could be seen together, and Nonindicted Co. 4 did not make the document’s personal instructions, such as Nonindicted Co. 1’s return to Nonindicted Co. 1, Nonindicted Co. 9, and Nonindicted Co. 10, and made the document 2’s.

② Nonindicted 8, who returned to Nonindicted Co. 1 after the withdrawal, stated in the prosecutorial office that “I would know that I would like to see Defendant 1’s president after the withdrawal of the company, once again at the meeting place of the retired employee, and I would like to know that I would like to know what the president is related to this case.”

③ Defendant 1 and Defendant 2, etc. conspired to interfere with the business of Nonindicted Co. 1 by failing to hand over Nonindicted Co. 1 at the office of early April 2006 at the time of retirement. Since Defendant 1 had already been retired, it cannot be deemed that the office of Nonindicted Co. 1 was recruited at the time, and there is no evidence to deem otherwise to have participated in Defendant 2, etc., and even in the statement of Nonindicted Co. 8, 9, and 10 returned to Nonindicted Co. 1 Co. 30 on March 30, 2006, there is no content that Defendant 1 instructed or participated in the meeting of the employees from the time of collective retirement after the general meeting of shareholders on March 30, 2006.

④ After Defendant 1’s retirement from Nonindicted Co. 1, Nonindicted Co. 1, on March 27, 2006, Defendant 1 engaged in job seeking activities, such as submitting a resume to Nonindicted Co. 11.

Therefore, although the facts charged in this part should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act, the court below erred by misunderstanding facts or misunderstanding the legal principles on co-principal, thereby finding Defendant 1 guilty of the facts charged, thereby affecting the conclusion of the judgment. Thus, Defendant 1’s ground of appeal

B) Five defendants 2 and others

The crime of interference with business is established in a case where a person interferes with another’s business by deceptive means or by force (Article 314(1) of the Criminal Act). Here, “definite force” refers to any force that is capable of suppressing or mixing a person’s free will. As a matter of principle, an employee has the right to independent association, collective bargaining, and collective action to improve working conditions as a fundamental right guaranteed by the Constitution (Article 33(1) of the Constitution). Thus, a strike as an industrial action does not always constitute the crime of interference with business. It does not mean that a strike constitutes the crime of interference with business at all times. In light of the situation and circumstances before and after the business, etc., if it can be deemed that an employer’s free will to continue the business can be deemed to be a suppression or confusion because collective refusal of labor constitutes force (see Supreme Court en banc Decision 2007Do482, Mar. 17, 201).

Such a legal doctrine is reasonable to deem that the same applies to the refusal of collective labor provision based on collective retirement from a group. All citizens are fundamental rights guaranteed by the Constitution, including the freedom of occupation selection (Article 15 of the Constitution), and as a matter of course, the freedom of occupation separation is included in the freedom of occupation selection. If an act of refusing to provide labor by collective retirement and causing damage to the normal operation of the employer’s business and operation of the business naturally constitutes a threat of force, the scope of criminal punishment may be excessively extended and the scope of criminal punishment may infringe on fundamental rights guaranteed by the Constitution as a matter of principle. In interpreting the concept of force subject to criminal punishment as seen above, it is necessary to adopt strict and prudent as the aforementioned legal doctrine.

From this point of view, refusal to provide labor due to the collective withdrawal of workers who do not take violence means is a collective action and even if the process of taking over the business was somewhat neglected, it shall not be deemed as a threat of interference with business unless there are special circumstances that can be deemed that the employer’s free will to continue the business was disturbed and confused by causing serious confusion or enormous damage to the business operation of the employer, and thus, the employer’s free will to continue the business may not be deemed as a threat of interference with business.

In light of the aforementioned legal principles, evidence relations, and the record, the evidence submitted by the prosecutor alone can not be deemed to cause serious confusion or confusion in the business operation of the non-indicted 1 corporation through a collective withdrawal of the non-indicted 1 corporation without any business transfer at a time when the non-indicted 1 corporation could not be presumed to have interfered with the business operation of the non-indicted 1 corporation, and there is no evidence to prove otherwise that the above defendants interfered with the business of the non-indicted 1 corporation by exercising their power.

① A number of Nonindicted Co. 1’s employees, including Defendant 2 and 5, decided to resign from the company, appears to be due to the fact that Nonindicted Co. 3 and 2, who had left the company against them, were appointed as the representative director through a general meeting of shareholders; Nonindicted Co. 7 decided to return Nonindicted Co. 3 and 2 despite the strong objection of the employees; accordingly, Nonindicted Co. 3 could not have any company any longer returned; and in light of these various circumstances, it appears that it was not a situation at which the five including Defendant 2 and other employees, and the fact that Nonindicted Co. 1 was retired from the company was entirely unexpected.

② Meanwhile, even based on Nonindicted 2’s statement at the trial court, “business transfer form” was paid to the company, and Defendant 2 and other five employees retired together at the time were prepared on the basis of the above form set by the company.

③ At the court of the trial, Nonindicted 12 stated that he received the transfer of the entire business from Defendant 6, and that he carried out the business smoothly without any problem due to such transfer of business, and Nonindicted 2 also stated in the court of the trial that he was aware that the Defendant 6 was the transferor to Nonindicted 12.

④ Defendant 3 stated that “In fact, Nonindicted 14, who was working as the head of the team at the time of the quality guarantee team, kept and managed all the original documents of the quality guarantee team.” In fact, Defendant 3’s private employees include Nonindicted 13 as the transferee of the business.

⑤ After withdrawal, five Defendant 2 and others received from Nonindicted Company 1 with the content certification related to the handover, etc. immediately, and responded in detail with the content certification. Some of the Defendant visited Nonindicted Company 1’s head office.

④ According to the sales status of Nonindicted Company 1, it is difficult to see that five including Defendant 2 and his employees’ collective withdrawal from the office directly affected the sales of Nonindicted Company 1, and furthermore, it is insufficient to view that Nonindicted Company 1 caused serious confusion or enormous damage to the business operation of Nonindicted Company 1.

In the court of the first instance, Nonindicted 2 also stated in the court that “after the retirement of the Defendant was affected by the rapid decrease of the sales. The first quarter of 2006 was the lowest and second quarter of 2/4. It was restored to the level of restitution.” In the third quarter and fourth quarter of 2005, the court of the lower court stated that “The level of restitution was the level.” In the first half of 2005, NASP, which supplied KRW 760 million in the second half of 2006, was bankrupt and suspended delivery. In 2006, it was difficult for Nonindicted 1 Company to view that there was a large number of market demand from PEED to ALED and that there was no significant influence on the employees of Nonindicted 1 Company on the research and development in the second half of 2006, and that it was difficult for Nonindicted 2 Company to have made a statement that there was a decrease in the production demand of Nonindicted 1 Company in the second half of 206.”

7) On the other hand, among Defendant 7’s prospectus, the part stating “Non-Indicted. 1 Company is expected to take time to recover from production and R&D,” which was prepared after the collective retirement of Defendant 2, etc. and employees, is anticipated to be inevitable to rearrange human resources due to the collective retirement, and it appears that it was presumed that it was estimated as above and that it was written based on the specific business status, etc.

viii Nonindicted 2 stated at the prosecution that it was difficult for the employee in charge of production to grasp a certain degree of inventory by collectively withdrawing from the prosecution. However, at the court of the court below, Nonindicted 15, who was in charge of identifying the quantity of inventory, left away without changing any material on his own computer at the time of retirement, and Nonindicted 14, who was the final manager of the quality control team, was in charge of the removal of the material, was in receipt of a report on the quantity of inventory at the time, and Nonindicted 15, who was only one month after the withdrawal, visited Nonindicted 1 Company and confirmed the quantity of inventory and the data together with Nonindicted 2, but it was not a problem.

① According to the statement on the reorganization of the organization of Nonindicted Co. 1 on January 2, 2006 and Defendant 6’s trial statement, at the time, Nonindicted Co. 1 was composed of four headquarters level organizations in research institutes, strategic headquarters, production headquarters, and management support departments. However, the production headquarters was derived from one research group in the research institute, and was made by the production headquarters’s synthetic team and research1 group in the original characteristics. Thus, it appears that the research group could have sufficiently replaced the work of the synthetic team.

Meanwhile, according to the statement of organization assignment according to the personnel order issued by Nonindicted Co. 1 on April 27, 2006 and the statement of Defendant 6 at the trial court, it is difficult to deem that there was no substitute worker at the time, since there was an attempt to perform the duty of organization assignment by the employee Nonindicted Co. 1 on April 27, 2006 and the employee Nonindicted Co. 16, who was originally affiliated with the other team after the retirement of 5 members, were re-re-registered to the fixed team. Nonindicted Co. 17, who was originally affiliated with the fixed team, still still remains in Nonindicted Co. 1., Ltd., and there was an employee Nonindicted Co. 18 and the employee Nonindicted Co. 19 and 20 had been working in the fixed team in 205.

In fact, Nonindicted Co. 1 appears to have replaced the number of production staff of the research institute with the number of employees, including Defendant 2 and five.

(10) Defendant 6 retired from the court on April 14, 2006. As to the reasons, Defendant 6 stated in the court of the court below that “There was no employee who did not know of the fact of withdrawal from the court because he did not have any employee who did not know the fact of withdrawal because he was aware of the fact that there was an inevitable reason for Nonindicted 3 to attend the court again, and that there was no other employee who did not know of the fact of withdrawal from the court.”

Therefore, although the facts charged in this part should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act, the court below found Defendant 2 and other five grounds for appeal have merit.

B. As to the prosecutor's assertion of misconception of facts and misapprehension of legal principles as to the prosecutor's obstruction of business with five defendants 1 and 2, occupational breach of trust, five defendants 1 and 2, and violation of the Unfair Competition Prevention and Trade Secret Protection Act against defendant 7 corporation and violation of the Unfair Competition Prevention and Trade Secret Protection Act

1) Summary of the facts charged

A) Joint principal offenders by the Defendants

(1) Invitation to commit crimes

In around 2004, Nonindicted Co. 1 succeeded to the development of OLD materials and entered into a supply contract with Samsung SDI and other large capital investment amounting to more than 1.8 billion won from many start-up business investment companies, Defendant 1, a representative director from around December 2, 2004, was in conflict with Nonindicted Co. 2 and Nonindicted 3, who is a member of Nonindicted Co. 1’s start-up business and a key personnel for the development of technology, while expanding control over Nonindicted Co. 1 as the representative director, and the conflict with Nonindicted Co. 1 was occurred with Nonindicted Co. 2 and Nonindicted Co. 3. Around January 12, 2006, the said Nonindicted Co. 3 unilaterally issued the said Nonindicted Co. 2 as a research adviser, and the said Nonindicted Co. 2 demanded the resignation of directors, and thereby, he demanded the resignation of the representative director from major shareholders and investors.

Under the above circumstances, some of the executives and employees, including Defendant 2, etc., following Defendant 1, decided to standardize their actions for Defendant 1’s representative director from February 2006, and accordingly, they set up a code of conduct, under the direction of Nonindicted 4, who was the head of the management support team of Nonindicted Company 1, and reported to Defendant 1, who was the head of the management support team of Nonindicted Company 1, and stated against the shareholders of Nonindicted Company 1, that they were the representative director of Defendant 1. However, on March 14, 2006, Defendant 1 resigned from the representative director and appointed Nonindicted 7 as the new representative director at the ordinary general shareholders’ meeting of Nonindicted Company 1, which was held on March 30, 206, the Defendants had an objection to the above result of the general shareholders’ meeting.

On April 2006, at the office of the non-indicted 1 corporation located in Seongdong-gu Seoul Metropolitan Government (number omitted) in Seongdong-gu, on the following grounds: (a) the Defendants, while working in the non-indicted 1 corporation, have the data obtained in the course of the development and production of the OLD material in the form of each computer file or document; (b) the Defendants, upon the retirement of the non-indicted 1 corporation, copied the file and set up a new company; (c) on the other hand, the Defendants conspired to acquire economic benefits and damage the non-indicted 1 corporation by stealing it in the course of the development and production of the OLD material of the same kind of company to newly establish the trade secret so acquired, and to interfere with the business of the non-indicted 1 corporation by deletion or damage.

Accordingly, according to the orders of Defendant 1, Defendant 2, 3, 4, 5, and 6 committed each of the following crimes.

(2) Interference with business

(A) On April 6, 2006, Defendant 2 deleted all the existing data in the way of preparing trade secret data in advance and eliminating all the format operations of the above hard disc and establishing new format operations in the way of creating files, such as files containing the amount of chemicals used by the Defendant on the computer (HD) used by the Defendant at the office of Nonindicted Co. 1, Ltd., and the design of OLD materials being developed or produced, “technical reports” related to synthetic technology, and various files related to the analysis technology.

(B) On April 6, 2006, Defendant 3: (a) around 2006, file of a molecule structure of OLED materials (0-Is 2003.p, 003.p., 003.p., 0-Is 2006.01p.p.p., A-1 Sceer 2006.p.p., 2006.1 p.p., YB 2006; (b) various files related to synthetic process, analysis technology-related files, etc. [2] the list of crimes; and (c) the existing disks are deleted by preparing trade secret materials listed in the attached Form [3] in advance, storing them on the CD 1 CD; and (d) eliminating all existing disks by means of the aforesaid format.

(C) On April 6, 2006, Defendant 4, collected on the Defendant’s hard disc in Nonindicted Co. 1’s office, deleted all the existing data by preparing trade secret data listed in the [Attachment], such as a file spool, a file spool, a file spool, and various files related to static technology, etc. (crime sight list (3)] in advance, stored in one blank CD, and distributing the above hard disc.

(D) On April 4, 2006, Defendant 6, at the office of Nonindicted Co. 1, 2006, posted “Announcement Data” related to the patent analysis collected on the Defendant’s hard disc used by the Defendant at the office of Nonindicted Co. 1, 2006, stored the data on the outside storage device of the USB, and removed the files by means of storing them in the non-indicted Co. 1, 2006, including files, files related to static technology, files related to static equipment related to static technology, files related to PED materials, files related to OLD materials, and files related to the enhancement of the net level of OLD materials, and files related to the process of enhancing the COLD materials used by the Defendant, and then discarded them to the non-indicted Co. 1, 201 through the force of the research and development of the MOD materials as above.

(3) Occupational Breach of Trust, Unfair Competition Prevention and Trade Secret Protection Act

The Defendants are prohibited from acquiring any trade secret useful to the Company for the purpose of obtaining unjust profits or causing damage to the Company, and the Defendants are obliged not to leak the trade secret of Nonindicted Incorporated Company 1 to the outside, and even if there were the occupational duties to return or destroy it, they are obliged to do so;

(A) On April 18, 2006, Defendant 2 set aside Nonindicted Co. 1 Company and stored in three CDs, Defendant 2 arbitrarily without legitimate authority, with the trade secret data listed in the attached Form [1], which was kept in three CDs;

(B) On April 17, 2006, Defendant 3 set aside Nonindicted Co. 1 Company and stored in Chapter 1 of the CD, Defendant 3 arbitrarily without legitimate authority, with the trade secret data listed in the [Attachment 2] attached hereto, which was kept in one CD;

(C) On April 17, 2006, Defendant 4 set aside Nonindicted Co. 1 Company and kept in one CD book at his own discretion, including the trade secret data listed in the attached Form [crime List (3] and the process of the molecularization of the products produced by Nonindicted Co. 1 Company, and Defendant 4 arbitrarily possessed an experimental set in which the trade secret of Nonindicted Co. 1 Company was recorded, without due authority;

(D) On April 18, 2006, Defendant 5 set aside Nonindicted Co. 1 Company and collected at the computer used by the Defendant on or around the 10th day of the same month and arbitrarily carry out the trade secret data listed in the attached Table [Attachment 4], such as a development report on the two-term development report on fixed equipment used by the Defendant and a research and development plan to be copied in Chapter DVD 2, without legitimate authority;

(E) On April 15, 2006, Defendant 6 set aside Nonindicted Co. 1 Company and stored it in the external storage device of the above USB. Defendant 6 arbitrarily carried out trade secret data listed in the attached Form (5) without legitimate authority.

As a result, the Defendants acquired a large quantity of trade secrets related to the OELD materials developed by Nonindicted Co. 1 with the aim of gaining unjust profits or causing loss to the company, caused property damage equivalent to the market exchange value of the above trade secrets to Nonindicted Co. 1, and acquired property profits equivalent to the same amount at the same time.

B) Defendant 7 corporation

The above Defendants, as their employees, acquired the above trade secrets of Nonindicted Company 1 with the intent to obtain unjust profits or to inflict losses on the Defendant’s business.

2) Determination on the violation of the Unfair Competition Prevention and Trade Secret Protection Act against 5 and Defendant 7 corporation, including Defendant 1 and 2

A) The judgment of the court below

The court below found, based on the evidence submitted by the prosecutor and the data submitted by the defense counsel, the following circumstances (i.e., Cerw .p.p.p. P. P. P. P. P. P. P. P. P. P. P, P-1 P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P within the computer managed by the defendant 2, each computer of the employees of the defendant 2 and the non-indicted 1 corporation was stored in Purter P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. stored the aforementioned data in P. P. P. P. P. P. P. P. P. P. P. P. P. P. for the purpose of using the network, the court below found that no specific security device of the non-indicted 1 corporation was installed, and that the aforementioned data were stored in P. P.P.

In light of the above overall circumstances, the lower court acquitted Defendant 1, 2, and Defendant 7 on this part of the charges on the grounds that it is difficult to deem the files listed in the separate sheet [crime List] to be kept confidential by considerable effort.

B) Determination of the immediate deliberation

(1) Legal principles

The term "trade secret" under Article 2 subparagraph 2 of the Unfair Competition Prevention and Trade Secret Protection Act refers to 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 is maintained as secret by considerable effort. Here, "it is maintained as secret by considerable effort" means a situation where it is possible to recognize the fact that information is maintained and managed as secret objectively, such as where the information is displayed or notified so that it can be perceived as secret, where the person who can access the information or who has access to the information is restricted, or where the person who has access to the information has obligation to observe the information, etc. (see Supreme Court Decisions 2008Do3435, Jul. 10, 2008; 2008Da44542, Dec. 23, 2010).

(2) Determination

In full view of the aforementioned legal principles and all the above circumstances duly admitted by the court below based on the records, the court below’s determination that the above facts charged were not guilty is justified.

① In the first instance court, Nonindicted Party 2 made efforts to put the phrase “crony” in a document in an important file, but as a result, did not provide regular trade secret security education to the general public. Nonindicted Party 2 stated that there was no provision regarding the security management, other than ISO901 note 2, that there was a computer in the meeting room, but Nonindicted Party 2 made efforts to delete the file by copying the necessary file on the said computer and holding it at the meeting.

② At the lower court’s court, Nonindicted 3 suggested that Defendant 6 was the head of the Subdivision Accounting Team in 2005, Defendant 6 recommended the establishment of a server, data backup system, and data backup system that recorded the Internet access for information security, but did not have been accepted as a result. Nonindicted 3 stated that there was no system capable of monitoring where employees were headed or printed out of the daily trade secret, such as materials design drawing.

③ At the prosecutor’s office and the lower court’s court, Nonindicted Co. 1 was sharing of the computers at the time when they were connected to the network, but now, there was no data security problem, and at the time, Defendant 2’s computer was connected to all employees’ computers and stated that there was no password.

④ At the lower court’s trial, Nonindicted Co. 1 stated that each of the computers was not used by Nonindicted Co. 2 at the time of Nonindicted Co. 2.

⑤ Nonindicted 8 stated in the prosecutorial office that some computers were infected with viruses, such as the speed of computers, etc., and that other employees were frequently used in format due to computer problems.

Therefore, as the prosecutor pointed out in the judgment of the court below, there is no error of law that affected the conclusion of the judgment by misunderstanding the facts or misunderstanding the legal principles.

3) Determination as to the occupational breach of trust against five defendants 1, 2, etc.

A) The judgment of the court below

The court below recognized the following facts by the evidence and materials submitted by the prosecutor: ① 11 storage devices used by the defendant 6 were all used from January 6, 2005 to March 16, 2006, and it seems that the defendant 6 was used as much as before April 14, 2006, and it did not appear to have been used for the release of the secrets of the non-indicted 1 corporation; ② The store number of the above 6 files connected to the computer after April 4, 2006 was "(number omitted)" and it was hard to recognize that the above 4 files were used for the defendant 6 files continuously from 0.0 to 4.0, and that the above 6 files were deleted from 6.0,000 to 6.4,000,000 were deleted from 6.4,000,000,000,000 from 6.4,000,000.4,06,000.

Furthermore, the court below, based on the evidence submitted by the prosecutor and the data submitted by the defense counsel, as follows: (i) five persons including the defendant 2 and other retired employees around the time of withdrawal from the non-indicted 1 corporation; (ii) five persons retired from the CD using the files used by the non-indicted 1 corporation; and (iii) three persons retired from the CD, including the defendant 2, 4, 3, and 8, and 105; (iii) the CD returned by the defendant 2 to the non-indicted 1 corporation was produced around March 7, 2006; and (iv) it is reasonable to view that the defendant 1 transferred the above list to the non-indicted 1 corporation and the non-indicted 2 corporation were prepared in the process of performing the business of the non-indicted 1 corporation; and (v) the non-indicted 1 corporation returned to the non-indicted 2 corporation after leaving the list with five persons including the defendant 2 and the non-indicted 1 corporation's return to the computer, and thus, found the non-indicted 2 corporation's return to the data.

In light of the above overall circumstances, the lower court determined that it is difficult to view that the files listed in the above [Attachment] were taken out with the awareness that five persons, including Defendant 1, 2, etc. conspired to obtain one’s own interest and a third party’s damage to Nonindicted Stock Company 1, and that it was not guilty of this part of the facts charged against Defendant 1, 2, etc. on the same ground.

B) Determination of the immediate deliberation

In order to establish the crime of occupational breach of trust, the perception and consequence of the occupational breach of trust is a subjective element, and therefore there is an intention in breach of trust to acquire the benefit of himself or a third party and thereby inflict damage on the principal. This perception is sufficient with dolusent perception. In case where the defendant denies the criminal intent of the crime of occupational breach of trust, the facts constituting a subjective element of the crime of breach of trust due to the nature of the object have to be proved by the method of proving indirect facts that have considerable relation with the intention. In this case, what constitutes indirect facts having considerable relation should be reasonably determined based on normal empirical rule (see, e.g., Supreme Court Decision 2003Do7878, Mar. 26, 2004).

In full view of the aforementioned legal principles and all the above circumstances duly admitted by the court below based on the records, the court below’s determination that the above facts charged were not guilty is justified.

① In the prosecution, Nonindicted 2 stated that it was impossible to find out whether the Defendants were using the technology of Nonindicted Company 1 that was leaked by the Defendants, and that there was no direct evidence about it.

② In the second examination of Defendant 1, Nonindicted 7 appeared as the complainant, and there was no confirmation as to whether the Defendants are conducting business using the trade secrets of Nonindicted Company 1, and the Defendants stated that there was no damage to the low-income company due to the business activities of Nonindicted Company 21, which appears to have been established by the Defendants.

③ According to the facts charged, Defendant 2, 4, and 3 stored the files used by Nonindicted Co. 1 on April 6, 2006 in each CD, deleted, and then removed each CD while leaving the CD. According to the results of the analysis report on October 27, 2008, the expert evidence prepared by Nonindicted Co. 22 in the digital investigation office of the Supreme Prosecutors’ Office, and the fact inquiry conducted on November 23, 2009, the date of production of the CD returned by Defendant 2 was 19:42, and the date of production of the CD returned by Defendant 4 remains 17:29, and it is difficult to recognize that the previous data were made after Defendant 3’s removal for the purpose of the production of the CD, as well as the date and time of the storage of the CD made by Defendant 4, and there is no further difference between Defendant 3 and the date and time of the storage of the CD, and Defendant 3’s removal for the purpose of the production of the CD.

④ Furthermore, taking account of the circumstances in which Defendant 2, 4, and 3 immediately returned each of the said CDs upon the request of the complainant, and the fact that Defendant 3 was using “○○○” on the front of the CD sent by Defendant 3, it cannot be ruled out a reasonable doubt as to whether the said Defendants disclosed the said CDs to the outside or illegally used them.

⑤ According to the facts charged, Defendant 5 and 6 stored and carried out trade secret data in Chapter DVD 2 and USB-form outside storage device, and there was no of the aforementioned DV and USB-form outside storage device.

6) According to the expert report prepared by the chief of the Supreme Prosecutors' Office, Nonindicted 22 on April 10, 2006, Defendant 5 appears to be identical with the files recorded in the separate sheet [Attachment 4] to the files used by Defendant 5, rather than the files recorded in the separate sheet [crime 4], and instead, it conforms to Defendant 5’s assertion that: (a) around March 3, 2006 and April 15 of the same year, before and after the storage of 7,801 files to DVD, Defendant 5 attached the external storage medium; and (b) the names and use dates of the files stored in the external storage medium; and (c) the files recorded in the separate sheet (crime 4] appear to be identical to those recorded in the computer used by Defendant 5. This is consistent with Defendant 5’s assertion that the personal data were stored in DVD and stored in DVD.

Therefore, as the prosecutor pointed out in the judgment of the court below, there is no error of law that affected the conclusion of the judgment by misunderstanding the facts or misunderstanding the legal principles.

4) Determination as to the obstruction of business due to the deletion of trade secret data by Defendant 1, Defendant 2, etc.

In full view of the following circumstances recognized by the record, it is difficult to readily conclude that the evidence submitted by the prosecutor alone by proxy by five, including Defendant 1 and 2, had deleted files on a computer or copied a computer to interfere with the business of Nonindicted Incorporated Company 1, and there is no other evidence to acknowledge otherwise.

① At the same time as Defendant 2 and five others, Defendant 2, 3, and 40,00 computers were circulated among the 222 persons retired from Nonindicted Co. 1, and most of the remainder appears to have not been format.

② At the court of the court below, Nonindicted 8 stated that “The Defendant conspireds to form a computer to interfere with the business of Nonindicted Company 1,” and on the other hand, he stated that “The computer was circulated due to a computer disorder around 2005, and other employees also have a format.”

③ According to the facts charged, Defendant 2, 4, and 3 stored the files used by Nonindicted Co. 1 on April 6, 2006 in each CD and deleted all the existing data by means of removing a hard disc format format and establishing a new format format or hard disc format. According to the results of the fact-finding conducted on October 27, 2008, the digital evidence analysis report prepared by Nonindicted Co. 22 in the digital investigation officer of the Supreme Prosecutors’ Office, and the expert report prepared by Nonindicted Co. 22 in the digital investigation officer of the Supreme Prosecutors’ Office, the date of production of the CD by Defendant 2 was 19:42 on March 7, 2006, and the date and time of production of CD by Defendant 4 were 17:29 on December 19, 2005, and the date and time of production of CD were 3:30 on April 16, 2002 without any inconsistency with the existing facts charged.

④ Defendant 3 stated that the computer format was not arbitrary but with the permission of Nonindicted 14 team leader. According to the expert report prepared by the Supreme Prosecutors’ Office appraiser Nonindicted 22 at the Supreme Prosecutors’ Office, Defendant 3’s hard disc was made up of C and E- 2, but Defendant 3 deleted 549 files between April 9, 2006 and April 14 of the same year, and Ed'b was created in a new format on April 6, 2006. There was no evidence to verify the contents of the files deleted from Ed's hard disc. Moreover, Defendant 2, 4, and 6’s request for restoration of the hard disc, and Defendant 38’s request for restoration of the hard disc. The reason was that Defendant 38 was not made.

⑤ Defendant 2 stored a number of files, such as 0-Ir 205 Pt, 005 005 Pt, 0-Cer 2005 09 Pt, A-0 005 Pt, Ter 2005 03 Pt, 005 07 005 Pt, DR 2005 07 007 pt, YB .Pt, etc. on a computer.

④ At the court below’s decision, Defendant 6 received a new employee Nonindicted 12 as his successor at April 4, 2006, and received a new employee Nonindicted 12 at the time, and had two computers used at the time, but the data of the computer were very strong, so it is difficult to distinguish if two data exist on both sides, and thus, Defendant 6 stated that all of the related data were removed to avoid duplication. Even according to Nonindicted 2’s statement, it is deemed that there were Nonindicted 12 as his successor at the time, and thus, it is consistent with objective circumstances, and it is difficult to view that there was removal of data necessary for business under the circumstances of his successor, and therefore, it is credibility in the above statement. In addition, Defendant 6’s deletion of 84,585 files and 59,000 among the number of files and spores that were deleted on April 4, 2006.

7) Even based on the expert report prepared by the chief of the Supreme Prosecutors' Office in charge of digital investigation officers, Nonindicted 22, and the fact inquiry results on June 4, 2010, there is no evidence to confirm what the contents of the files are deleted from Defendant 4's hard disks.

8) Nonindicted 8 made a continuous statement in the prosecutor’s protocol and statement by Defendant 4, with the direction of Defendant 4, that the file was stored in CDs and was placed on a computer so that other persons may not view the witness’s computer. Nonindicted 8’s credibility of the statement in the lower court’s court, such as the reversal of the statement that Defendant 4 did not instruct.

9) Nonindicted 8, 9, and 10 stated in the investigative agency and the court of original instance that “the Defendant had a meeting from the date on which Nonindicted 7 representative director was appointed to the general meeting of shareholders on March 30, 2006, discussed the plan to leave the company and the method of interfering with the business of Nonindicted 1.” However, both Nonindicted 8, 9, and 10 retired from Nonindicted Company 1 to 5, including Defendant 2, and returned to Nonindicted Company 1. In this court, Nonindicted 8 made a statement to avoid his responsibility “B was as instructed from the main figures such as Defendant 2,” and Nonindicted 8 made a statement to the effect that “Nonindicted 2, including the fact that Nonindicted 8, 9, and 10 made a statement to the lower court that “it was difficult for Nonindicted 2, who operated the manufacturing order,” and that it was difficult for Nonindicted 2, who made a statement to enter the computer’s password into the computer, and that it was difficult for Nonindicted 2, 2, 3, and 3 to enter it into the computer.

Therefore, as the prosecutor pointed out in the judgment of the court below, there is no error of law that affected the conclusion of the judgment by misunderstanding the facts or misunderstanding the legal principles.

3. Conclusion

Therefore, the part of the judgment of the court below convicting Defendant 1 and Defendant 2, etc. 5, and the part of obstruction of duties due to collective withdrawal without transfer, cannot be exempted from reversal on the grounds that the appeal by the above Defendants is well-grounded. However, the part of acquittal on the grounds of obstruction of duties due to deletion of trade secret data related to the reversed part should be reversed together in terms of inseparative treatment of the single crime. Therefore, without examining the above Defendants’ assertion of unfair sentencing, each of the convictions against the above Defendants (including the part of acquittal in the grounds) among the judgment of the court below pursuant to Article 364(6) of the Criminal Procedure Act shall be reversed, and it is again decided as follows after pleading (the prosecutor’s appeal against the acquittal in the grounds of appeal by the above Defendants among the judgment of the court below is without merit. However, as seen earlier, since the part of acquittal in the grounds of appeal is reversed, so long as the part of the judgment of the court below is viewed as legitimate, the appeal shall not be separately indicated in the order

Of the acquittal portion of the judgment of the court below against five defendants 1 and 2, the violation of the Unfair Competition Prevention and Trade Secret Protection Act, the prosecutor's appeal against the occupational breach of trust, and the prosecutor's appeal against the defendant 7 corporation is without merit. Thus, all of the appeals are dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Part of innocence (a point interfering with the business of five persons, such as Defendant 1 and Defendant 2)

1. Parts which interfere with the business due to the collective withdrawal without transfer and takeover;

The gist of this part of the facts charged against Defendant 1 and 2 is as follows: “The victim 1 corporation was established on October 26, 200 for the main purpose of research, development, and sale of materials and components related to the former 40, and Defendant 1 was employed as the representative director around April 22, 202, and Defendant 2 was issued as the first research team leader of Nonindicted 1 corporation from around January 13, 2005 to the 6th executive officer of Nonindicted 20. The defendant 1 was established on the part of the above 10, Defendant 2, who was not a party to the above 6th executive officer of Nonindicted 4, who was not a party to the above 6th executive officer of the company. The defendant 2, who was not a party to the above 6th executive officer of the company, was not a party to the above 10th executive officer of the company, and Defendant 4, who was a party to the 10th executive officer of the company, was a party to the 14th executive officer.

2. The part concerning interference with business due to the deletion of trade secret data;

The summary of this part of the facts charged against the five defendants 1 and 2 is as described in Article 2-2-2 (1) (A) (1) and (2) of the above Act, and as stated in Article 2-2-2 (b) (4) of the judgment on the grounds of appeal, it is difficult to conclude that the above defendants conspired to delete files on a computer or wire format to obstruct the business of the non-indicted 1 corporation, and there is no other evidence to prove otherwise. Thus, this part of the facts charged constitutes a case where there is no evidence to prove the facts charged, and thus, the defendant is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act.

It is so decided as per Disposition for the above reasons.

[Attachment] List of Crimes (1), (2), (3), (4), (5): omitted

Judges Sung-dae (Presiding Judge) (Presiding Judge)

(1) According to the records, the annual sales revenue of Nonindicted Company 1 was 4.2 billion won in 2005, 3.9 billion won in 2006, 6.5 billion won in 2007, and 8.5 billion won in 2008. The internal sales revenue of Nonindicted Company 1 was 6.7 billion won in 2006, 10.0 billion won in 2007, 2008, and 20 billion won in 2008, and the sales payment rate was 58% in 2006, 64% in 2007, and 43% in 2008, and it is difficult to view that Nonindicted Company 1 suffered enormous damages due to the retirement of the instant group, and there is no evidence to deem that the instant group 1 continued to have influenced the sales after 206.

Note 2) International standards for quality management systems established by the ISO;

Note 3) The prosecutor asserts in the statement of grounds of appeal that it is difficult to view the CD between Defendant 2 and Defendant 2 as being produced on March 7, 2006. However, the written appraisal prepared by Nonindicted 22 by the Prosecutor of the Digital Investigation Office of the Supreme Prosecutors' Office only indicates the date of production of the CD by Defendant 4, and there is no question about Defendant 2's date of production of the CD, and the same is also the same as the result of the inquiry by November 23, 2009, and the prosecutor also claims that the CD was produced on March 7, 2006 at the court below (the written opinion by December 9, 2010). Even if the date of production was wrong, it cannot be immediately recognized as the date of production of the CD, and there is no evidence to acknowledge it otherwise.

Note 4) This accords with Defendant 4’s assertion that the patent-related materials, etc. were stored in CDs to work in Pyeongtaek, not immediately before the withdrawal. However, the said written appraisal states that, since the files indicated as being created and corrected after the CD date among the storage files in Defendant 4 CDs are discovered, the said information on the date of production of the CDs cannot be trusted. However, on the contrary, the said date of production of the CDs cannot be immediately recognized as April 4, 2006, and no other evidence exists to acknowledge it.

Note 5) The prosecutor deems, among them, that the external storage media used as G DDB or H D DD is presumed to be the above DV. However, in the case of G D D D D D D D D D D D D DD’s final access date is from January 24, 2006 to February 1, 2006, and Defendant 1 transferred to the resignation of the representative director of Nonindicted Company 1, it is reasonable to view that Defendant 5 was prepared in the course of performing the duties in which Defendant 1 took charge of Nonindicted Company 1’s corporation. Since HD DD’s storage medium model name is USB MD, it is difficult to dVD.

Note 6) The prosecutor pointed out that the number of files is too large to be deemed to have copied personal data. However, such circumstance alone cannot be readily concluded that the said files are trade secret data.

Note 7) However, since the said written appraisal finds any file that is indicated as being created and corrected after the date of the CD production among Defendant 4’s storage files, it states that the said date of the CD production cannot be trusted. However, the said written appraisal does not necessarily mean that the date of the CD production is April 4, 2006, and there is no other evidence to acknowledge it (see, e.g., Supreme Court Decision 2005Do448, Apr. 6, 2006).

Note 8) This conclusion is that 5, such as the above Defendant 2, etc., deleted the existing data on April 6, 2006 without having to do so at the time of deletion. This is inconsistent with the details indicated in the facts charged.