Defendant 1 and one other

Both parties

The Korean Constitutional Court (prosecutions) and the highest court (public trial)

Law Firm Pyeongan et al., Counsel for the defendant

Seoul Central District Court Decision 2013Da7560 Decided August 11, 2016

The judgment of the court below is reversed.

Defendant 1 shall be punished by imprisonment with prison labor for four months and by imprisonment for one and half years.

However, the execution of the above punishment shall be suspended for one year for Defendant 1, and for three years for Defendant 2, from the date this judgment became final and conclusive.

1. Summary of grounds for appeal;

A. Defendants

(i)misunderstanding of facts or misunderstanding of legal principles

㈎ 한국저작권위원회의 감정결과 통보서의 증거능력에 관한 법리오해

The first instance court presented the notice of the appraisal result of May 21, 2014 to the Korea Copyright Commission as evidence of guilt, but this is notified of the result after the party's participation was excluded from the court. However, the prosecutor or the defendant's side did not submit it as evidence, and there was no legitimate procedure of investigation of evidence, and thus, it cannot be used as evidence of guilt against the facts charged of this case.

㈏ 부정경쟁방지 및 영업비밀 보호에 관한 법률(이하 ‘부정경쟁방지법’이라고만 한다)의 ‘영업비밀’ 해당 여부에 관한 사실오인 내지 법리오해

① Of the files listed in the separate list of crimes in the judgment of the court of first instance (hereinafter collectively referred to as “each file of this case”), the similarity between each file of the victim Nonindicted Incorporated Co. 1 (hereinafter referred to as “victim Co. 2”) and the bar code of Nonindicted Co. 2 (hereinafter collectively referred to as “Nonindicted Co. 2”) is found, the part that found the similarity between the file No. 1 through 13, 33, and 34, as indicated in the separate list of crimes in the judgment of the court of first instance, and the file of the victim Nonindicted Co. 1 Co. 1, Ltd. (hereinafter collectively referred to as “victim Co. 1, Jun. 11, 2013”) and the file code of Nonindicted Co. 2 Co., Ltd. (hereinafter collectively referred to as “Nonindicted Co. 2”) were found, since most of the files were disclosed to the general public easily accessible on the Internet, or the contents of the file, such as Kamera’s research, etc., were detailed in detail or disclosed, or disclosed, etc.

② The file No. 14 is not a 3D source file of the victim company, but a file ordinarily used by almost all employees, including the employees of the victim company, for the follow-up management of products sold by the victim company, and does not constitute trade secrets because of the lack of non-public nature or confidentiality control.

③ Each file of this case is difficult to view that it has independent economic value, and the victim company has not maintained and managed it as trade secret with considerable effort.

㈐ 부정경쟁방지법상의 ‘사용’ 해당 여부에 관한 사실오인 내지 법리오해

① The first instance court presumed that the act of executing the file and the act of storing or reading the file by creating confusions with the act of making the file, and the act of making the file to be mixed, was carried out. However, Defendant 2 stated that Defendant 2 does not constitute “use” as prescribed by the Unfair Competition Prevention Act, since it was not true that the victim company’s bar code was carried out in the form of the electronic file. (Additionally, Defendant 2 did not constitute “use” as provided by the Unfair Competition Prevention Act. However, the first instance court stated that “Defendant 2 performed the file of this case and perused the contents thereof, and stored them in a separate file by editing some contents.” This does not exist in the content of the facts charged in the instant case, and it is not clear which file is.

② The files of this case Nos. 1 through 8, 11 through 13, 33, and 34 are similar to those of the victim company and the non-indicted company No. 2, but are merely referred to in some. The files of this case Nos. 9 and 10 are directly prepared by the defendant No. 2 without referring to the respective files of the victim company, and do not have similarity.

③ In the case of each file of this case Nos. 15 to 32, the Defendant was inspecting it, but in fact, Defendant 2 did not have developed the source code of Nonindicted Company 2 using each file of the victim company, and there is no similar part between the two sides (in particular, in the case of Nos. 15 through 17, 19, 21, 23, and 26 among them, only Defendant 2 produced each file using each corresponding file of the victim company, and it does not specify which file was produced specifically).

㈑ 부정경쟁방지법상의 ‘부정한 이익을 얻거나 기업에 손해를 입힐 목적’ 해당 여부에 관한 사실오인 내지 법리오해

① Around April 201, Defendant 2, who is in office at the victim company, was holding a house using a portable storage device that contains each file of this case as a result of the need for business operations, and did not acquire it without obtaining permission while leaving the victim company. At the time, Defendant 2 was employed in Nonindicted Company 2 and did not plan to develop 3D scanners for medical purposes. Accordingly, it cannot be deemed that Defendant 2 acquired and used each file of this case for the purpose of obtaining unjust profits or causing damage to the company.

② In particular, in the case of the instant file No. 14, Defendant 2 executed the said file, but this did not aim to seek the products developed by Nonindicted Company 2, but rather to repair the said products at the consumer’s request that purchased the products of the victim company, and to operate the test, so there was no intention to obtain unjust profits or to incur losses to the company.

㈒ 업무상배임의 점에 관한 사실오인 내지 법리오해(피고인 2)

① Defendant 2’s act in relation to the occupational breach of trust of the victim company’s trade secret code was used and acquired. The first instance court found Defendant 2 guilty of this part of the facts charged but held that “an act of not returning or not destroying” constitutes the act of breach of trust without any explanation as to how the use or acquisition of each file of this case constitutes the act of breach of trust. This constitutes an unlawful act of lack of reason.

② Defendant 2’s use of each file of this case is all the time of withdrawal of the victim company after September 201, 201, and thus, Defendant 2 is not recognized as a business manager of the victim company.

③ On April 201, when Defendant 2 was in office of the victim company, Defendant 2 lawfully acquired the bar code of the victim company containing each file of this case. Therefore, the above acquisition cannot be deemed as a case of acquiring property benefits by breach of duty in the crime of occupational breach of trust.

④ Even if Defendant 2’s annual salary contract and retirement allowances submitted at the time of withdrawal with the victim company are based on their respective entries, the duty of confidentiality is only stipulated, and there is no provision that “to return or destroy all the data at the time of withdrawal or change of business.” Therefore, Defendant 2 cannot be deemed to have the duty to return or destroy the victim company’s bar code to the victim company upon withdrawal under the incidental duty under the employment contract or the good faith principle.

【Unjustifiable sentencing

It is unfair that each sentence of the first instance court against the Defendants (Defendant 1: 2 months of imprisonment, 1 year of suspended sentence, 1 year of imprisonment and 2: 1 year and 6 months) is too unreasonable.

(b) Prosecutors;

(i) mistake of mistake (not guilty part against Defendant 1)

According to the evidence submitted by the prosecutor, Defendant 1 committed a crime of violation of the Unfair Competition Prevention Act (the act of disclosing business secrets, etc.) by using each file of the instant case Nos. 1 through 13, 15 through 34, which is the trade secrets of the victim company, in collusion with Defendant 2, and sufficiently recognized the fact that Defendant 1 committed a crime of occupational breach of trust without returning or destroying each file of the instant case.

【Unjustifiable sentencing (the guilty part against Defendant 2 and Defendant 1)

The punishment of each of the first instance courts against the Defendants (Defendant 1: 2 months of imprisonment, 1 year of suspended sentence, 1 year of imprisonment and 2: 1 year and 6 months of imprisonment) is deemed unreasonable.

2. Ex officio determination

We examine ex officio prior to the judgment on the grounds for appeal by the Defendants and the prosecutor. However, despite the ex officio grounds for reversal, the Defendants’ assertion of mistake of facts or misapprehension of legal principles and the prosecutor’s assertion of mistake of facts is still meaningful. Thus, we will examine the changed charges in paragraphs 3 and

A. Amendments to Bill of Indictment concerning Occupational Breach of Trust against the Defendants

In the appellate court, the prosecutor modified the charge of occupational breach of trust against the Defendants among the facts charged in the instant case (amended charges), and the subject of the judgment was modified following the court’s permission. In addition, as seen in paragraphs (3) and (4), the modified charges are found guilty as to Defendant 2, and part of them (the file part in this case) against Defendant 1, as to Defendant 2, and as to Defendant 1’s guilty. As above, each of the convicted charges should be sentenced to one punishment in relation to the relation of substantive concurrent crimes or commercial concurrent crimes with each other of the facts charged in the first instance judgment, and therefore, all of the part as to Defendant 2 and the guilty part in Defendant 1 and the part as to the violation of occupational breach of trust against Defendant 1 cannot be maintained.

The Defendants shall not leak trade secrets or major business assets acquired while serving in the victim company, or use them for personal interests of the competitor company or the Defendants, and there was a duty to return or discard trade secrets or major business assets acquired during the victim company's resignation to the victim company.

Nevertheless, the Defendants conspired to leave the victim company at their discretion and did not return or discard the source code while leaving the victim company, and used the victim company's trade secrets from around August 24, 2012 as shown in the separate list of crimes, including using the victim company's trade secrets in manufacturing 3D mine so that the Defendants used the victim company's trade secrets from around 200 to August 24, 2012.

As a result, the Defendants acquired the economic benefits equivalent to the value of property, such as the trade secrets of the victim company, and caused property damage equivalent to the same amount to the victim company.

B. Error in the application of the Unfair Competition Prevention Act to the defendants on the violation of the Unfair Competition Prevention Act (Trade Secret Protection Act)

Article 18(2) of the former Unfair Competition Prevention Act (amended by Act No. 11963, Jul. 30, 2013; hereinafter “former Unfair Competition Prevention Act”) provides that a person who has used a trade secret shall be punished by imprisonment for not more than five years or by a fine equivalent to not less than two times but not more than ten times the amount of profit on property. Accordingly, in order to impose a fine on a person who has divulged a trade secret, the amount of profit on property should be first specified, and the amount of profit on property shall not be punished by a fine unless the amount of profit on property is nonexistent or not specified.

Article 18(2) of the former Unfair Competition Prevention Act (amended by Act No. 11963, Jul. 30, 2013; hereinafter “Act No. 11963, Jul. 30, 2013; hereinafter “Trade Trade Secrets users shall be punished by imprisonment for not more than five years or by a fine not exceeding 50 million won; however, if the amount equivalent to ten times the amount of profit from property arising from the violation exceeds 50 million won, the person shall be punished by a fine not less than double but not more than ten times the amount of profit in property.” The reason for the amendment was implemented on Jan. 31, 2014 (the reason for the expansion of the need to protect trade secrets owned by an individual or non-profit institution, including a person who uses trade secrets of an individual or non-profit institution as a subject of criminal punishment, and accordingly, it seems that the subject of punishment is defined in a multiple-choice method of

According to the revised Unfair Competition Prevention Act, a more statutory penalty than the former Unfair Competition Prevention Act may be deemed to have been stipulated in the part of a fine not exceeding KRW 50 million (i.e.,, where the amount equivalent to ten times the amount of property profit is not more than KRW 50 million under the former Act, a fine not exceeding 10 times the amount of property profit shall be imposed, but all according to the revised Act, a fine not exceeding KRW 50 million shall be imposed). Meanwhile, unlike the case where the amount of property profit of the offender cannot be specified or the violator did not gain any property profit, Article 18(2) of the former Unfair Competition Prevention Act may be imposed by selecting a fine not exceeding KRW 50 million, which is less than that of the former Unfair Competition Prevention Act, and thus, the former Act’s statutory penalty is less than that of the former Act in this case.

Therefore, it is reasonable to apply Article 18(2) of the amended Unfair Competition Prevention Act to the Defendants pursuant to Article 1(2) of the Criminal Act, since the case constitutes “when the punishment is less than the former Act due to the revision of the Act after the crime” in which the Defendants’ use of the trade secret of the damaged company is impossible to determine the amount of pecuniary profit. In this regard, the part against Defendant 2 and the guilty part against Defendant 1 among the judgment of the first instance which selected the Defendants to be sentenced to imprisonment by applying Article 18(2) of the former Unfair Competition Prevention Act cannot be maintained.

C. Of the acquitted portion against Defendant 1, the violation of the Unfair Competition Prevention Act against each file Nos. 1 through 13, 15, and 34 in the judgment on the number of crimes committed against Defendant 1

Of the facts charged against Defendant 1, the violation of the Unfair Competition Prevention Act (hereinafter "the Unfair Competition Prevention Act"), among the facts charged against Defendant 1, is committed consecutively under the same criminal intent, and even though there is a relation of a blanket crime, the judgment of the court of first instance which acquitted Defendant 1 on the violation of the Unfair Competition Prevention Act (hereinafter "the Unfair Competition Prevention Act") as to each file in addition to the file No. 14 of this case, which was found guilty on the ground that it constitutes a concurrent crime under the former part of Article 37 of the Criminal Act, is erroneous in the judgment of the court of first instance, and it affected the judgment. Accordingly, among the non-guilty part against Defendant 1, the part concerning the violation of the Unfair Competition Prevention Act (the "the Unfair Competition Prevention Act, etc."), among the non-guilty part against Defendant 1, as stated in the judgment of the court of first instance, could no longer be maintained.

3. Judgment on the misunderstanding of facts or misapprehension of legal principles by the Defendants

A. The Korea Copyright Commission's assertion of misunderstanding of legal principles as to admissibility of notification of appraisal results

Since an expert witness's written expert witness's written expert witness's written expert witness's written expert witness's written expert witness's testimony is admissible only when the authenticity of formation is recognized by the expert witness's statement, he/she shall submit a separate written expert witness's written expert evidence and indicate his/her consent on the list, such as evidential documents, and if the defendant

According to the records of this case, on May 21, 2014, the first instance court notified the prosecutor and the defense counsel of the Defendants of the arrival of the appraisal result as above at the second day of May 29, 2014 when the Korea Copyright Commission’s “3D Capital Program Appraisal Report” pursuant to the Defendants’ request for appraisal, and stated that the Defendants’ opinions were true, the prosecutor and the defense counsel did not have any special opinion, and there was no submission of the above appraisal report (such as evidentiary documents not indicated on the list), and there was no confirmation of the Defendants’ consent or the subsequent examination procedure. Nevertheless, the first instance court found the Defendants guilty of part of the facts charged against the Defendants. Accordingly, the first instance court erred by misapprehending the legal principles on admissibility by misapprehending the legal principles on admissibility of evidence, even though the Korea Copyright Commission’s “3D Capital Program Appraisal Report” was not submitted as evidence, and thus, did not err by misapprehending the legal principles on admissibility of evidence.

However, in the appellate trial, the prosecutor newly submitted the Korea Copyright Commission’s “3D Capital Program Appraisal Reports” to the court of appeal, and consented to the use of them as evidence by the Defendants, the appellate court adopted and investigated the said written appraisal as evidence. Accordingly, the above defects of the first instance court were cured, which did not affect the conclusion of the first instance judgment, and thus, it does not reverse the first instance judgment on this ground.

B. misunderstanding of facts or misapprehension of legal principles as to whether a trade secret constitutes "trade secret" under the Unfair Competition Prevention Act

(i) Relevant legal principles

The term "trade secret" under Article 2 subparagraph 2 of the Unfair Competition Prevention Act means any technical or operational information useful for business activities, such as methods of production and sale, which is not known publicly, has independent economic value, and has been maintained in secret by considerable effort.

In this context, the phrase “not known to the public” means that the information is not known to many unspecified persons because it is not known to the public, such as the publication, etc., the information cannot be ordinarily obtained without going through the holder. Thus, even if the holder manages the information as a secret, it cannot be said that the information is a trade secret if it is generally known (see, e.g., Supreme Court Decision 2002Da60610, Sept. 23, 2004). However, it is difficult to readily conclude that a certain enterprise or other enterprise, which is commonly implemented, discloses the results of the experiment, or has disclosed the academic and theoretical grounds in many academic areas, or contains a design concept in a foreign patent application document, or includes a design concept in a foreign patent application document, or its physical nature, method, andism, such as a sample, etc. used in another company’s products or experiment, or that the content of the information is produced not only by the victim but also by a foreign company, but also by the victim, and it does not exceed 30130 or 401.

Then, “the person who has an independent economic value” means that the person who has obtained the information can benefit from competition against the competitor through the use of the information, or that considerable expenses or effort is needed to acquire or develop the information. If the information satisfies all the above requirements, it does not interfere with the conclusion that the information is a trade secret even if it does not reach the completed stage to the extent that it can be used for business activities immediately, or if it does not assist a third party, or if it is a trial product, it does not interfere with the conclusion that the information is a trade secret (see Supreme Court Decision 2005Do623, Feb. 15, 2008).

Finally, the phrase "to be kept confidential by considerable effort" means a situation in which it is recognizable that information is maintained and managed objectively as confidential, such as making or notifying a person who can access the information, restricting access to the information, or imposing a duty to maintain confidentiality on the person who has access to the information (Supreme Court Decision 2008Do3435 Decided July 10, 2008).

See Specific Judgment

The first instance court stated in detail that each of the files of this case constitutes a trade secret under the Unfair Competition Prevention Act through the pertinent parts of the judgment. According to the evidence duly adopted and investigated by the first instance court and the appellate court, all of the facts and circumstances acknowledged by the first instance court can be recognized. In addition to the following circumstances, the first instance court’s judgment that each of the files of this case constitutes a trade secret under the Unfair Competition Prevention Act is just and acceptable, and it cannot be deemed that there was a misunderstanding of facts or a misunderstanding of legal principles as alleged by the Defendants. Accordingly, the Defendants’ assertion on this part is rejected.

㈎ 비공지성

① In the process of preparing each file Nos. 1 through 13, the victim company appears to have referred to as an open source in some cases. However, in general, in a case where a program developer prepares a program source code and uses an open source license offered by the program development entity, the program developer may choose a certain part of the open source and arrange and change the selected parts in any way. The victim company also prepared each file Nos. 1 through 13 of the instant case, by making considerable time and effort to effectively implement specific functions necessary for the victim company’s 3D scanning operation, it appears that the program developer has done the work of selecting, arranging, and changing the functions of using the program.

② The Korea Copyright Commission shall assess whether the similar parts between the files Nos. 1 and 11 of this case and the corresponding source codes of Nonindicted Company 2 are similar to those of the Defendants, which were submitted by the Defendants, and shall assess whether the open source code and the thesis (hereinafter “victim’s materials”) are similar to those of the materials, and even if parts of the similar parts between the files and Nonindicted Company 2’s source code are similar to those of the Defendants, the degree of similarity is low, and if the similarity between the files and Nonindicted Company 2’s source code is greater, it shall be determined that the source code of Nonindicted Company 2 is similar to each file of the above Nos. 1 through 11 of this case, and in opposition, the source code of Nonindicted Company 2 was similar to the materials submitted by the Defendants. As a result of the appraisal, it was found that the source code of Nonindicted Company 2 was similar not to the materials submitted by the Defendants, but to the above No. 1 through No. 11 of each file.

③ On the other hand, the Korea Copyright Commission presented an opinion on whether the similar parts between the files and the Defendants’ bar codes were embodied on the basis of the water formula of the published thesis contained in the Defendants’ materials (with respect to each file set forth in the above 12 and 13, unlike the case of each file set forth in the above 12 and 13, the appraisal was requested only for the above matters), and the files set forth in the above 12 and 13 and the bar codes of Nonindicted Party 2 were embodied on the water formula of the published thesis. However, in light of the fact that it is necessary to implement the bar codes suitable for specific products based on the water formula set out in the thesis, it merely appears that the number of files set forth in the above 12 and 13 were presented in the thesis, and it merely does not appear to mean that the contents of each file set forth in the above 12 and 13 have already been initiated on the paper.

④ The open source, etc. partially related to each file of this case Nos. 1 through 13, is disclosed, and each file of this case Nos. 1 through 13, is not disclosed. Ultimately, since each file of this case Nos. 1 through 13, referred to the victim company, cannot be deemed as having been substantially identical to the data of the open source, each file of this case Nos. 1 through 13, cannot be deemed as having been publicly known.

⑤ Meanwhile, according to the Defendants’ written expert evidence (Evidence No. 26) submitted by their defense counsel at the appellate court, each file of this case Nos. 1 through 8, 11, 12, 13, 33, and 34 and similar parts of the bar codes of Nonindicted Company 2 may be easily prepared from open source sources, such as open source sources, etc. However, as seen earlier, even according to the above written expert statement at the appellate court statement of Nonindicted 3 prepared the above written expert evidence, the number of program developers selected some parts of the open source and arranged and changed selected parts in any way. As such, even according to the above written expert statement of Nonindicted 3, the witness did not compare the entire bar code, and thus, it cannot be deemed that each file of this case was not publicly known.

㈏ 경제적인 유용성

1. The 3D files are composed of 3D files, 3D files, 4, and 5, and 3, and the 3D files are composed of 3D files and 4, and the 3D files are composed of 3D files and 4, and the 3D files are composed of 3D files and 4, and the 3D files are composed of 3D files and 4, and the 3D files are composed of 3D files and 4, and the 3D files are composed of 3D files and 4, and are composed of 3D files and 4, and the 111, the 3D files are composed of 3D files and 4, and the 3D files are composed of 3D files and 4, respectively.

② In addition, the economic value of the relevant source code file cannot be deemed to be denied on the ground that the victim company did not actually release the product using the file of this case from the date of withdrawal by the Defendants to the date of 2012. Moreover, each file seems to have been applied to the victim company’s 3D typep product since it was developed and long time.

㈐ 비밀관리성

① It appears that the size and financial capacity of the victim company are not so large, and small and medium enterprises of the same size as the victim company are practically impossible to fully maintain and manage trade secrets at the same level as large enterprises due to the limit of financial capacity. In such a situation, if it is demanded to maintain and manage secrets equivalent to large enterprises, small and medium enterprises would be difficult to obtain protection of trade secrets. Therefore, even if some of the parts are insufficient to maintain and manage trade secrets, if it is recognized that they were not negligent in making efforts to maintain and manage trade secrets in light of the size and financial capacity of enterprises, etc., under the Unfair Competition Prevention Act, on the premise that other requirements

② At the time when the Defendants worked in the victim company, only Nonindicted 4 and only Defendant 2, who had been the research team leader and the responsible research institute, could have access to all DNA copies of the victim company server, and only two employees with the authority to freely access the entire source code of the victim company, were allowed to access the window remote connection account.

③ The victim company conducted a comprehensive individual evaluation of employees twice a year; the “security management” portion also consists of items to be evaluated and reflected in the evaluation; and the victim company also made it reasonable to send e-mail to the employees to take part in the security.

④ Defendant 2 stated at the prosecutor’s office that “the victim company’s 3D scanner program code shall not be removed from the outside without the victim company’s permission, and the file No. 14 of this case is an important file to be managed as the victim company’s trade secret.”

⑤ On the other hand, the fact that the victim company used the remote control program called “supto interview” to allow employees to access the server of the victim company from the outside is recognized, but even if so, employees who were not granted access authority through the TortoseN program are bound to limit access to each file of this case.

④ Nonindicted 4 sent a part of the hydrogen code to Defendant 2, who was not employed on October 24, 2008, without indicating any confidential data, by e-mail. However, at the time, it was immediately before the victim company and Defendant 2 entered into a service contract, and the duty of confidentiality of Defendant 2 is clearly stated in the service contract concluded around November 1, 2008.

7) Prior to a merger with the victim company, some employees engaged in the research and development of the 3D scanner program at the ○○○○○ Co., Ltd. appear to have access to the victim company server. However, ○○○○ Co., Ltd. established a separate brand to sell the 3D scanner for medical treatment, and deemed that the representative director and the major shareholders were the same and the same companies as the victim company, such as using the same office.

C. misunderstanding of facts or misapprehension of legal principles as to whether it constitutes "use" under the Unfair Competition Prevention Act

(i) Relevant legal principles

The term “use of trade secrets” refers to an act that is directly or indirectly used for business activities, such as production and sale of goods, or for research and development activities, etc. in accordance with the original purpose of use of trade secrets, and specifically specific acts are committed. If an actor inspects trade secrets at the time close to his/her business activities under the intent to use or utilize it for business activities related to the trade secrets (where the trade secrets are in the form of electromagnetic waves, the act of performing the relevant electromagnetic waves beyond the storage phase) was conducted, there is commencement of implementation of the trade secrets (see Supreme Court Decision 2008Do9433, Oct. 15, 2009). In addition, the use of trade secrets is prohibited under the Unfair Competition Prevention Act, not only where a product is produced by simply copying technology which is a trade secret, but also where an error or necessary test is omitted by referring to another person’s trade secrets, or where the time and expenses required for reverse design are saved.

See Specific Judgment

In full view of the following facts and circumstances acknowledged by the public health team, the first instance court, and the appellate court comprehensively adopted and examined the evidence as to the instant case, it is recognized that Defendant 2 produced the source code of Nonindicted Company 2 by viewing and referring to the files of the instant case 1 through 13, 15, and 34, and operated the said program with a single program called a 3D scanner program by referring to and operating the source code file with different source code files. It is recognized that the above program was operated. It is recognized that the time and expenses needed to reduce error of enforcement or necessary experiments were considerably saved, and that the above program was used as a trade secret. In addition, it can be recognized that the Defendants conspired to use the instant file No. 14, which is the 3D source file creation, and then made use of the source file after making use of the source file, and therefore, constitutes the use of the trade secret in accordance with the original purpose of business activities.

㈎ 피고인 2는 이 사건 1 내지 8, 11 내지 13, 33, 34번 각 파일의 일부를 참조하여 공소외 2 회사의 소스코드를 제작하였을 뿐만 아니라, 실제 양자 사이에 유사성이 있다는 것을 인정하고 있다.

㈏ 이 사건 9, 10번 각 파일의 경우 카메라 캘리브레이션 최적화를 위한 것으로서 위 각 파일에는 피해자 회사가 독자적으로 개발한 “calcvSVD_t” 함수가 포함되어 있는데, 공소외 2 회사의 해당 소스코드에는 함수명을 “svd_decom”으로, 변수명을 일부 변경하였을 뿐 그 상세내용은 유사하게 되어 있다. 한국저작권위원회가 작성한 ‘3D 스캐너 프로그램의 감정서’의 기재에 의하더라도, 공소외 2 회사의 각 해당 소스코드는 모두 공개된 자료보다는 이 사건 9, 10번 각 파일과 유사하다는 결과이다. 결국 피고인 2는 이 사건 9, 10번 각 파일도 공소외 2 회사의 각 해당 소스코드를 작성함에 있어 참조한 것으로 보인다.

㈐ 피고인 2는 3D 스캐너 라이선스 생성기 소스코드인 이 사건 14번 파일을 컴파일 시켜 라이선스 생성기를 만든 후 이를 실행하여 일본 소재 공소외 5 회사가 피해자 회사로부터 구입한 3D 스캐너의 수리를 위하여 사용하였는데, 당시 위 회사와 공소외 2 회사 사이에는 공소외 2 회사가 개발한 제품에 관한 판매가 논의되고 있는 상황이었다.

㈑ 피고인 2는 이 사건 15 내지 32번 각 파일에 대하여는 항소심에서도 이를 열람한 사실을 인정하고 있다(특히 그 중 15 내지 26번 각 파일의 경우에는 위 각 파일에 대한 해당 주2) 링크파일 이 존재한다). 나아가 피고인 2는 이 사건 27번 파일 중 일부 내용을 발췌, 복제하여 새 텍스트 문서로 붙여넣기 한 후 저장하였고, 이 사건 28번 파일 중 함수 일부를 복사해서 code.cpp라는 소스코드로 따로 저장하였으며, 자신의 노트북에 저장되어 있던 피해자 회사의 전체 소스코드 중 일부인 이 사건 29 내지 32번 각 파일을 열람하여 선별한 후 이를 다른 새로운 폴더로 복사해서 저장해 놓았다. 이는 영업비밀인 이 사건 각 파일의 내용을 열람하지 아니한 채 단순히 별도의 장치나 위치에 저장한 것과는 명백히 구별된다.

㈒ 컴퓨터 프로그램의 경우 프로그래머는 기존에 만들어 놓은 함수(이러한 함수의 모임을 라이브러리라고 하고, 확장자가 ‘lib’인 파일이 라이브러리 파일이다)나 다른 소스코드의 함수를 사용할 수 있는 기능을 제공하고(프로그래머는 위 함수가 포함된 확장자가 ‘h’인 파일, 즉 헤더파일을 불러오는 명령어를 소스코드에 적은 후 위 함수를 사용할 수 있다), 효율적인 프로그래밍과 사후 보완을 위해 소스코드를 여러 개의 파일에 나누어 작성하되, 위 파일끼리는 헤더파일을 불러오는 방식을 통하여 전체가 하나의 소스코드로 기능할 수 있도록 할 수 있다. 이 경우 각 소스코드 파일(확장자가 ‘cpp’인 파일)은 헤더파일에 의하여 연결되어 서로 다른 소스코드 파일을 참조하여 연동하여 작동하게 된다. 이 사건의 경우에도 이 사건 각 파일은 각각의 파일이 독립하여 별개의 프로그램을 구성하는 것이 아니라, 3D 스캐너 구동을 위한 하나의 프로그램을 구성하는 것으로서 효율적인 프로그래밍을 위해 여러 개의 파일로 분리되어 있는 것에 불과하다. 따라서 피고인 2가 이 사건 각 파일을 참조하여 작성한 소스코드가 구체적으로 어떤 것인지가 일부 특정되어 있지 않다고 하더라도, 위와 같은 프로그램의 성격상 위 각 파일을 열람한 후 이를 참조함으로써 3D 스캐너 구동을 위한 하나의 프로그램을 구성하는 소스코드를 제작하고, 다른 소스코드와 참조 및 연동하여 위 프로그램을 구동하기 위하여 사용하였다고 볼 수 있다.

㈓ 더욱이 피고인 2도 검찰에서 조사받을 당시 ‘이 사건 9, 10번 각 파일을 제외한 나머지 각 파일의 경우 이를 모두 공소외 2 회사의 소스코드를 사용함에 있어 참고나 사용을 하였다’라는 취지로 진술하여 위 9, 10번을 제외한 나머지 각 파일을 공소외 2 회사의 3D 스캐너 구동을 위한 프로그램의 연구·개발에 활용함으로써 사용한 사실을 인정하였다.

㈔ 피고인 2는 비밀준수약정에 의하여 피해자 회사에서 퇴사한 이후에도 비밀유지의무를 부담함에도 불구하고, 피고인 1이 피해자 회사와 같은 3D 스캐너 제품을 생산할 목적을 가지고 있음을 알면서도 피해자 회사에서 퇴사한 후 공소외 2 회사에 근무하고, 피해자 회사에서 퇴사할 당시 보관하던 이 사건 각 파일(14번 제외)을 참조하는 등으로 공소외 2 회사의 3D 스캐너 프로그램을 작성하여 결국 소스코드 작성에 소요되는 시간과 비용을 절약한 것으로 보인다.

D. misunderstanding of facts or misapprehension of legal principles as to whether the act constitutes “the purpose of obtaining unjust profits or causing loss to the company” under the Unfair Competition Prevention Act

(i) Relevant legal principles

The crime of violation of Article 18(1) and (2) of the Unfair Competition Prevention Act is a crime committed with intent other than intentional intent as an element for the formation of a crime. The purpose of the crime is, even if it does not necessarily have positive intent or conclusive perception, dolusence. Whether there was such purpose should be determined reasonably in light of social norms by taking into account various circumstances such as the defendant's occupation, career, motive and circumstance of the act, method, method, and method of the act, and relation between the company possessing a trade secret and the third party who acquired a trade secret (see Supreme Court Decision 2006Do5080, Apr. 26, 2007, etc.).

See Specific Judgment

Comprehensively taking account of the following facts and circumstances acknowledged by the evidence duly adopted and investigated by the first instance court and the appellate court, it is sufficiently recognized that the Defendants used each of the instant files (in the case of Defendant 1, limited to the instant files No. 14) that are trade secrets of the victim company for the purpose of obtaining unjust benefits or causing damage to the victim company. Accordingly, the Defendants’ assertion on this part is rejected.

㈎ 피고인 2는 검찰에서 조사받을 당시 ‘피해자 회사에서 퇴사한 후 공소외 2 회사로 입사할 계획이 있었고, 피고인 1로부터 공소외 2 회사의 지분 35%를 받기로 하였으며, 구체적인 일정까지 잡은 것은 아니지만 피고인들이 3D 스캐너 개발에 관심이 있었던 것은 맞다’라는 취지로 진술하였다.

㈏ 피고인들은 공소외 2 회사 설립 당시부터 이미 3D 스캐너를 개발하려는 계획을 가지고 있었는데, 당시 공소외 2 회사에서 소프트웨어 개발을 담당한 직원은 피고인 2 혼자였음에도 불구하고, 피고인들은 2011. 10. 무렵부터 불과 4개월 만에 3D 스캐너의 핵심기술을 개발하고 전체적으로 10개월 만에 3D 스캐너를 개발하려는 계획이었던 것으로 보인다. 피해자 회사의 3D 스캐너 관련 소프트웨어 개발에 참여한 인원이나 그 개발기간 등을 고려할 때 이는 개발자 1명이 피해자 회사의 3D 스캐너 제작에 사용된 수준의 소프트웨어를 개발하는데 필요한 통상적인 개발기간보다 짧은 것으로 보인다.

㈐ 피고인 2는 공소외 2 회사에서 3D 치과용 스캐너 프로그램을 개발하기 전인 2011. 9. 무렵 소프트웨어 저작권침해, 영업비밀침해에 관하여 관심을 갖고 그에 관한 자료를 확인하였고, 피고인 1 역시 이 사건과 같이 근로자가 2년간의 경업금지약정에 의하여 2년간 경업금지의무가 있음에도 불구하고 퇴직한 회사와 동종의 사업을 목적으로 하는 회사를 설립한 다음 퇴직한 회사에서 재직 중 알게 된 고객정보를 이용하여 퇴직한 회사의 기존 고객에게 경쟁제품을 판매하는 것이 경업금지의무를 위반한 것인지에 관하여 판시한 판결문을 블로그에서 검색하여 2011. 9. 21. 이를 피고인 2와 다른 직원인 공소외 6에게 이메일로 보내는 등 피고인 2의 경업금지의무 위반 내지 영업비밀침해 여부에 관하여도 미리 검토한 것으로 보인다.

㈑ 나아가 피고인 2는 앞서 본 바와 같이 실제로 피해자 회사와 동종 제품을 취급하려는 공소외 2 회사의 주요 상품인 3D 스캐너를 개발, 구동하는 데에 필요한 소스코드 파일을 작성함에 있어 피해자 회사의 소스코드 파일을 사용하였다.

㈒ 한편, 피고인들이 이 사건 14번 파일을 컴파일시켜 라이선스 생성기를 만든 후 이를 실행하여 주요 거래처 고객인 공소외 5 회사가 보유한 피해자 회사의 3D 스캐너 수리를 위해 사용한 것 또한 위 고객에 대한 영업활동을 위한 것으로서, 위 고객으로부터 수리비용을 받지 않았다는 사정은 피고인들에 대한 ‘부정한 이익을 얻거나 손해를 입힐 목적이 있었음’을 인정함에 있어 아무런 영향을 미치지 아니한다.

E. misunderstanding of legal principles as to occupational breach of trust

(i) Relevant legal principles

The crime of occupational breach of trust is established when a person who administers another's business obtains pecuniary advantage or causes a third party to obtain such pecuniary advantage through an act in violation of one's duty and thereby causes damage to the principal. Here, "act in violation of one's duty" refers to any act in violation of a fiduciary relationship with the principal by failing to perform an act that is naturally expected under the provisions of law, the terms of a contract, or the good faith principle, or by performing an act that is naturally expected not to perform an act that is naturally expected to not be certain (see Supreme Court Decision 98Do4704 delivered on March 12, 199, etc.), and "when an act in violation of a fiduciary relationship with the principal" includes not only cases where a real loss is inflicted, but also cases where a risk of actual damage to property exists (see Supreme Court Decision 2003Do4382 delivered on October 30, 2003).

Therefore, if a company employee divulges a trade secret to a competitor or ships it out without permission for the purpose of using it for his own interest, the crime of occupational breach of trust is established at the time of release (see Supreme Court Decision 2003Do4382, Oct. 30, 2003). If a company employee lawfully takes out a trade secret or material which is a major business asset, and the act of taking it out does not constitute a crime of occupational breach of trust, even if the act of taking it out does not constitute a crime of occupational breach of trust, if the company employee leaks it out to a competitor or did not return it for the purpose of using it at the time of withdrawal, or did not return it for his own interest (see Supreme Court Decision 2006Do9089, Apr. 24, 2008).

On the other hand, in order to establish the crime of occupational breach of trust, there should be subjective requirements such as awareness of occupational breach of trust and the recognition that the person himself or a third party acquires the benefit and thereby causes damage to the principal, namely, the intention of occupational breach of trust. Such recognition is sufficient due to dolusence. In a case where the defendant denies the criminal intent of the crime of breach of trust, the facts constituting the 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, and in such a case, what constitutes indirect facts having considerable relation should be reasonably determined based on normal empirical rule (see Supreme Court Decision 2003Do7878, Mar. 26, 2004, etc.).

See Specific Judgment

In light of the above legal principles, the first instance court and the appellate court acknowledged the following facts and circumstances based on the evidence duly adopted and investigated by the court of first instance, Defendant 2 can be acknowledged as having obtained property benefits and inflicted loss on the victim company by failing to return or discard each file of the instant case constituting the trade secrets of the victim company, as stated in the revised facts charged, and in violation of its occupational duties. Defendant 2 can sufficiently recognize Defendant 2’s intent on occupational breach of trust. Accordingly, this part of the allegation by Defendant 2 is without merit.

㈎ 피고인 2가 피해자 회사 재직시 피해자 회사와 사이에 작성한 연봉계약서에는 “직원이 회사의 업무 중 취득한 기술, 정보, 문건 및 지적재산권 등은 회사의 서면 동의가 없는 한 회사의 소유로 하며, 업무상 필요하거나 회사의 서면 동의하, 또는 관할법원의 판결, 결정 등에 의하여 요구받는 경우를 제외하고는 기밀을 유지하여야 한다. 비밀유지의 의무는 일반인에게 알려지기 전까지는 본 계약 후에도 존속한다.”라는 내용의 ’비밀유지의무‘가 포함되어 있다. 따라서 피고인 2가 작성한 연봉계약서에 퇴사시 보관하고 있는 피해자 회사의 영업비밀을 반환한다는 내용이 명시적으로 기재되어 있지는 아니하나, 고용계약에 따른 부수적 의무로서 내지는 신의칙상 퇴사시에 이 사건 각 파일들을 피해자 회사에 반환하거나 폐기할 의무가 있다고 할 것이다.

㈏ 한편, 피해자 회사는 재택근무 등 업무상 필요가 있는 경우에 한하여 업무용 자료의 반출을 용인하고 있기는 하였으나, 피고인 2는 이 사건 각 파일들을 반출함에 있어 피해자 회사에게 알려 그 승낙을 받은 바는 없다. 피고인 2는 이 사건 각 파일이 피해자 회사의 영업비밀에 해당함을 충분히 인식하고 있었던 것으로 보임에도, 피해자 회사의 퇴사 무렵인 2010. 8. 2. 피해자 회사에 “고용계약서 제8조(비밀유지의무)에 의하여 회사의 업무 중 취득한 모든 기술, 정보, 문건 및 지적재산권 등은 회사의 소유임을 알고 있으며, 회사의 동의하, 또는 관할법원의 판결, 결정 등에 의하여 요구받는 경우를 제외하고는 기밀 유지를 할 것임을 확인합니다. 영업비밀의 유지를 위하여 2년간 동종업계에 취업하지 않을 것을 확인합니다.”라는 내용이 포함되어 있는 퇴직원을 제출하여 위 각 파일의 반출사실을 고지하지 않았을 뿐만 아니라, 이를 피해자 회사에 반환하거나 폐기하지 않고 퇴사 후에도 계속 보관하고 있었다.

㈐ 피고인 2는 피해자 회사를 퇴사한 후 공소외 2 회사에 입사할 계획이 있었고, 실제로 공소외 2 회사에 입사할 무렵인 2011. 8. 23.경 공소외 2 회사에서 근무하기 위하여 새로 구입한 노트북 컴퓨터에 이 사건 각 파일들을 포함한 피해자 회사의 소스코드 전체를 저장한 후 실제로 공소외 2 회사의 소스코드를 작성함에 있어 이를 열람 및 참조하였다.

㈑ 즉, 피고인 2가 그 주장과 같이 순전히 재택근무 등 업무상 필요에 의하여 이 사건 각 파일을 반출한 것이어서 그 반출행위에 있어서는 배임의 고의가 있었다고 단정하기 어렵더라도, 그 공소사실에 적시된 퇴사시 위 각 파일을 피해자 회사에 반환하거나 폐기할 의무를 위반한 행위가 배임행위에 해당한다(따라서 이 사건 업무상배임과 관련한 피고인 2의 행위가 피해자 회사의 영업비밀인 소스코드를 사용 및 취득하였다는 것임을 전제로, 제1심이 이 사건 각 파일에 대한 사용 및 취득이 어떻게 배임행위에 해당하는지에 대한 이유 설시가 없으므로 이는 이유불비의 위법에 해당한다거나, 피고인 2가 위 각 파일을 사용한 시점이 모두 피해자 회사를 퇴사한 후인 2011. 9. 이후이므로 당시 피고인 2에 대하여 업무상배임죄에 있어서 피해자 회사의 타인사무 처리자의 지위가 인정되지 아니한다는 취지의 피고인 2의 주장도 나아가 살필 필요 없이 이유 없다).

㈒ 나아가 피고인 2의 위와 같은 이 사건 각 파일의 미반환 또는 미폐기행위로 인하여 피해자 회사에 위 각 파일의 시장교환가치 상당의 실해 발생의 위험성이 초래되었고, 이로써 업무상배임죄는 기수에 이르렀다고 봄이 상당하다.

4. Judgment on the prosecutor's assertion of mistake of facts (the part of acquittal against the defendant 1)

A. The first instance judgment

According to the evidence duly adopted by the first instance court, Defendant 2’s statement made by the prosecution that corresponds to this part of the facts charged is inadmissible as it is not admitted as actual authenticity. Meanwhile, according to the evidence duly admitted by the first instance court, the Defendants appears to have had a plan to develop 3D scanner since the establishment of Nonindicted Company 2. At the time, the Defendants were planning to develop core technology of 3D scanner from October 201 to 40,000 in total, and to produce 3D scanner at 10,0000,0000 in total. In light of the fact that Nonindicted Company 2’s software development employees were only one Defendant 2, it is difficult to readily conclude that Defendant 1 was aware of the circumstances that Nonindicted Company 2 was using the bar code acquired at the time of the victim’s employment, and it was difficult to conclude that Defendant 2 was aware that there was no possibility that Defendant 2 was an expert with experience and skills in the pertinent technology and that there was no expertise in the development of the victim’s bar code or its software, etc.

B. Judgment of the appellate court

(i) Relevant legal principles

Article 30 of the Criminal Act provides that two or more persons jointly commit a crime, and the crime is established by meeting the subjective and objective requirements, namely, the commission of a crime through functional control based on the intent of co-processing and the intent of co-processing. In addition, in order to recognize a beneficiary who benefits from the commission of an occupational breach of trust or a third party closely related thereto as a co-principal with the perpetrator of the occupational breach of trust, it is insufficient to acquire profits by taking advantage of the act of breach of trust passively even though the act of the actor is aware that the act constitutes an act of breach of trust against the victim himself/herself, and it is necessary to actively participate in the act of breach of trust by instigating the perpetrator’s breach of trust or participating in the whole process of the act of breach of trust (see Supreme Court Decision 2003Do4382, Oct. 30, 2003).

See Specific Judgment

㈎ 이 사건 1 내지 13, 15 내지 34번 각 파일 부분에 대한 부정경쟁방지법위반(영업비밀누설등)의 점 및 업무상배임의 점

In light of the above legal principles by comprehensively taking account of the reasons for the acquittal portion of the first instance court and the evidence duly adopted and examined by the appellate court, it is reasonable to find the first instance court not guilty of the defendant 1's violation of the Unfair Competition Prevention Act (Leakage of business secrets, etc.) and occupational breach of trust, and there is no error of law of mistake of facts as pointed out by the prosecutor. Accordingly, the prosecutor's assertion of mistake of facts is rejected.

① Impeachment evidence is recognized in order to reduce the probative value of a statement, and is not allowed as evidence for facts constituting an offense or for recognition of an indirect fact (see, e.g., Supreme Court Decisions 95Do2945, Sept. 6, 1996; 201Do5459, Oct. 25, 2012). Therefore, Defendant 2’s prosecutor’s statement that corresponds to the facts charged in this part is merely for the impeachment of the credibility of the investigative agency and the legal statement after the Defendants, and further, it cannot be a evidence for the direct evidence or indirect fact-finding to acknowledge Defendant 1’s conviction.

② Defendant 1 consistently denies the same effect that “Defendant 2 was unaware of the fact that he was using Nonindicted Company 2’s bar codes by referring to each file of the instant case (except No. 14) of the victim company” from the prosecution to the appellate trial.

③ Even if Defendant 1 knew of the fact that Defendant 2 would develop the bar code of Nonindicted Company 2 within a short time by using the bar code acquired at the time of Defendant 2’s employment, this is merely a passive acquisition of profits by taking advantage of the act of breach of trust with the knowledge that Defendant 2’s act constitutes an act of breach of trust against the victim’s company. Accordingly, it is insufficient to view that Defendant 2 actively participated in the act of breach of trust or participated in the process of aiding and abetting Defendant 2’s act of breach of trust or the functional control over the use of a trade secret to the extent that he

④ Nonindicted 7 stated in the court that “Defendant 1 was in charge of all processes, such as development, manufacture, and sale at the victim company,” and that Defendant 1, who was in charge of the hardware part, did not have any possibility that Defendant 1 had fully known the time, process, and expenses required for the development of software for the development of the scner product. Defendant 1, who stated that Defendant 1 was the same with Defendant 2 in the business that he would retire from the victim company, and that Defendant 1 was talked in the first floor car page of the company, and that the contents of the conversation of the Defendant, but the witness stated to the effect that he would be well aware of the overall contents, instead of the developer. Accordingly, even if Nonindicted 7’s statement was based on the above statement, Defendant 1 was insufficient to recognize that Defendant 1 took functional control over each file of this case through the Unfair Competition Prevention Act (the Unfair Competition Prevention Act) and the occupational control of the crime of breach of trust, etc., and that Defendant 1 was not sufficiently recognized.

㈏ 이 사건 14번 파일 부분에 대한 업무상배임의 점

However, in full view of the following facts and circumstances acknowledged by the first instance court and the appellate court’s duly adopted and investigated evidence, it is recognized that Defendant 1 conspired with Defendant 2, using the file No. 14 of this case, which is a trade secret of the victim company, obtained market value equivalent to the above property value of the victim company, such as the above trade secret, and suffered property damage equivalent to the same amount of the victim company. Nevertheless, even in the file No. 14 of this case, the first instance court which acquitted Defendant 1 of this part of the charges on the ground that there is no evidence to prove that Defendant 1 committed the crime of occupational breach of trust in collusion with Defendant 2, and there is no evidence to prove that the crime of occupational breach of trust was committed. Accordingly, the prosecutor’s

① As seen earlier, Defendant 2 had the duty to return or destroy the file No. 14 to the victim company at the time of withdrawal. Furthermore, according to the facts and the incidental obligation under the employment contract, or the good faith principle, Defendant 2 ought to take out and not provide the trade secrets or major business assets of the victim company for a considerable period of time even after withdrawal from the company without the consent of the company. Such obligation is based on a trust relationship between the company and its employees, and it cannot be deemed that it is limited to a simple civil obligation (see, e.g., Supreme Court Decision 2006Do9089, Apr. 24, 2008).

② In addition, even if Defendant 2’s act of not returning or not destroying each file of this case at the time of withdrawal led to Defendant 2’s crime of occupational breach of trust against Defendant 2, it is possible to establish a separate crime against a third party who participated in the act after the non-permanent act (see Supreme Court Decision 77Do541, May 18, 197). As long as Defendant 2 conspired and participated in the act of using the file of this case No. 14, which can be assessed as a non-permanent act against Defendant 2, as long as Defendant 1, a third party, was involved in the act of using the file of this case No. 14, then Defendant 1 constitutes a separate crime of occupational breach of trust against the file of this case No. 14.

③ However, at the time of the prosecutor’s investigation, Defendant 2 stated to the effect that “Defendant 1 created the victim company’s 3D scanner’s license and created the license file using the victim company’s license program and then made the license file using the file.” Defendant 1 also stated at the prosecutor’s office that Defendant 2 told Defendant 2 about the file of this case No. 14 as follows: “At the time, Defendant 1 was unable to use the 3D scanner’s license program due to the lack of the license kis, and the decision to use the license program of Nonindicted Company 1 to make the license kis,” and that “the file of this No. 14 ought to be carried out only by the victim company’s employees, and did not think that it was made public.”

④ In light of the above statements, it is reasonable to view that Defendant 1 actively participated in the above act of breach of trust by participating in the entire process of occupational breach of trust following Defendant 2’s use of the file No. 14 of this case. Accordingly, Defendant 2’s act of using the file No. 14 of this case as a third party, who conspired and participated in the above act of Defendant 1, constitutes a separate crime of occupational breach of trust against the file No. 14 of this case.

5. Conclusion

Therefore, the judgment of the court of first instance has the above reasons for ex officio reversal, and the prosecutor's appeal on the violation of occupational duty among the acquittal portion against Defendant 1 is partially reasonable. Thus, without examining the Defendants and the prosecutor's argument of unfair sentencing, the judgment of the court of first instance is reversed pursuant to Article 364 (2) and (6) of the Criminal Procedure Act, and it is again decided as follows (as long as the judgment of the court of first instance is reversed by accepting ex officio or prosecutor's appeal partially, the defendants' appeal against it and the remainder of the prosecutor's appeal are not dismissed separately from the order).

The summary of the facts constituting a crime and evidence against the Defendants recognized by this court is as stated in each corresponding column of the judgment of the first instance except for the following (amended facts constituting a crime). As such, it is cited as it is in accordance with Article 369 of the Criminal Procedure Act.

【Revised Crime】

2. Occupational breach of trust;

The Defendants shall not leak trade secrets or major business assets acquired while serving in the victim company, or use them for personal interests of the competitor company or the Defendants, and there was a duty to return or discard trade secrets or major business assets acquired during the victim company's resignation to the victim company.

A. Defendant 2

Nevertheless, Defendant 2, as described in Paragraph 1, voluntarily removed and kept the entire soften code of the above 3D luminous Capitaler, and did not return or discard the soften code to the victim company while leaving the victim company. In manufacturing 3D luminous Capital, Defendant 2 used the victim company's trade secrets from around 24 August 2012, and used the soften code, which is the trade secrets of the victim company, such as the list of crimes, from around 200 to August 24, 2012.

As a result, Defendant 2 acquired the economic benefits equivalent to the value of the property, such as the trade secrets of the victim company, and caused property damage equivalent to the same amount to the victim company.

B. Defendant 1

Nevertheless, in collusion with Defendant 2 on August 24, 2012, at the office of Nonindicted Company 2 located in Yongsan-gu Seoul ( Address 1 omitted), Defendant 1 requested the repair of 3D scanner purchased from the victim company from Nonindicted Company 5 located in Japan. Defendant 2 retired from the victim company while he voluntarily removed and kept all of the bar codes of the said 3D scanner, as described in paragraph 1, and used the bar code for repair of the said 3D scanner, a trade secret of the victim company that had not returned or discarded the bar code to the victim company.

As a result, Defendant 1 acquired a market value equivalent to the property value of trade secrets listed in No. 14 of the victim company's attached list of crimes, and suffered a property loss equivalent to the same amount with the victim company.

1. Relevant legal principles concerning facts constituting the crime;

Article 18(2) of the Unfair Competition Prevention and Trade Secret Protection Act, Article 30 (Use of Trade Secrets), Articles 356 and 355(2) of the Criminal Act (in the case of Defendant 1, Article 30 of the Criminal Act is added and occupational breach of trust is committed)

1. Formal concurrence (Defendant 1);

Articles 40 and 50 of the Criminal Act

1. Selection of a sentence;

Each Imprisonment Selection

1. Aggravation for concurrent crimes (Defendant 2);

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

1. Suspension of execution (the defendants);

Article 62 (1) of the Criminal Code (Considerationl Circumstances, etc. favorable to Reasons for Sentencing below)

In that infringement of trade secrets may take advantage of unfair profits from the superior position of the infringing person's "humdart" or "hour saving time," rather than a fair competitor, the crime is more serious. In light of the amount and importance of the data on trade secrets of the victim company used by Defendant 2 leaked by Defendant 2, the degree of occupational breach of trust and infringement of trade secrets is not less complicated. Defendant 1 was in charge of an important position at the time of the victim company's work, and in particular, Defendant 1 was in this case in the process of developing the same kind of product after establishing the competing company after the withdrawal of the victim company. The victim company wants to punish the defendants.

On the other hand, Defendant 2 is a person who has developed a considerable portion of each file of this case in the course of serving in the victim company and has independently developed the source code of 3D scanner program without using the above file. Defendant 1’s trade secret of the victim company involved in the use is only one case, and is not directly related to the development of competitive products, and it does not amount to the result or damage. The Defendants are first offenders, and Defendant 2 deposited KRW 100 million in the appellate court for the victim company.

Furthermore, the sentencing factors include the contents and difficulty of the trade secret, the period and expenses that the victim company required to obtain the trade secret, and efforts and methods to keep the trade secret. In addition, the defendants' age, character and conduct, environment, circumstances, the degree of participation in the crime, and all the sentencing conditions in the process of the trial after the crime are considered, and the punishment is determined as per each order against the defendants.

Of the facts charged against Defendant 1, as described in the separate sheet Nos. 1 through 13, 15, and 34, Defendant 1 in collusion with Defendant 2, as to the use of the trade secret of the victim company and the use of the trade secret without returning or destroying it to the victim company, Defendant 1 should be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act as it constitutes a case without proof of crime as seen in the Bab. However, as long as it is found that Defendant 1 was guilty of the violation of the Unfair Competition Prevention Act due to the use of the file No. 14 of the annexed sheet No. 14 and the crime of occupational breach of trust due to the use of the file No. 14 of the crime committed in relation to each of the above crimes, it shall not be pronounced separately in the disposition

Judges Cho Il-il (Presiding Judge)

1) On June 24, 2013, the bill number 5569, proposed by the chairman of the Industrial Trade Resources Committee, was adopted as is, and the above contents are the main contents of the “The Amendment Bill to the Unfair Competition Prevention and Trade Secret Protection Act”. The reasons for the amendment are the same.

Note 2) Linked file (LINK): A linked file is created by a file system, referring to the objects of the applied program, DNA, file, etc., as a function existing only in the window operation system, but automatically created when the user opens a specific file.