Defendant 1 and three others

Yellow Jins (prosecutions) and the last sentence (public trial)

Law Firm LBnB Partners et al.

Defendant 1 shall be punished by imprisonment for one year, by imprisonment for both Defendants 2 and 3, and by a fine of 50,000,000 won, respectively.

However, the execution of each of the above punishment against the above defendants 1, 2, and 3 shall be suspended for two years from the date this judgment became final and conclusive.

Of the facts charged in this case, the defendant 4 corporation's violation of the Unfair Competition Prevention and Trade Secret Protection Act (Disclosure of Business Secrets, etc.) shall be acquitted.

【Basic Facts】

1. The defendants' relation

As of December 31, 2013, Defendant 1 was a major shareholder holding 36.59% of the shares of Defendant 4 Stock Company (hereinafter “Defendant Company”) as of December 31, 201 as well as a representative director of Defendant Company who has overall control over the company’s business from around December 1992 to around December 1992.

Defendant 2, who was employed by the Defendant Company around December 2005 and worked as the head of the headquarters from September 201, 201, took overall control of the affairs related to the operation of wholesale stores, distribution businesses, and chain stores, and the head of the marketing headquarters from October 201 to April 1, 201, who retired from office as the head of the marketing headquarters.

Defendant 3, who was employed by the Defendant company around August 199 and started work in one team of the business headquarters in the Seoul metropolitan area, was promoted to the above company’s business headquarters as the head of the business headquarters of the above company on November 2007. From around 2008, Defendant 3 was in charge of planning related to the reorganization of the wholesale store while holding the office as the head of the H headquarters’s wholesale business. From February 2009 to February 2, 2009, Defendant 3 was a person in charge of overall control over the affairs related to the wholesale store.

Defendant Company is a corporation established around December 1992 for the purpose of manufacturing and selling alcoholic beverages.

2. Relationship between the defendant company and the damaged wholesale store;

A. Summary

Since the government’s regulatory and policy dependence on the liquor industry is relatively high, the existence of brand distribution, such as consumer preference for specific alcoholic beverages, and the establishment of early facility investment and liquor distribution network, and the need to obtain a license for handling alcoholic beverages by class, the market barriers are high. As of February 2009, the size of the domestic pharmaceutical market as of the year 2009 is approximately 92.6 billion. Of these, the market share of the Defendant company is approximately 65.3% (in advance 60.5 billion won), among which, the market share of the domestic pharmaceutical industry was around 65.3% (in advance 60.3 billion won). The Defendant company produced new products such as the ▽▽▽▽△△, a domestic pharmaceutical representative, and issued new products from around November 2007. As of February 2, 2009, the Defendant Company concluded a license agreement with 74 percent of the total sales volume of the Defendant company that did not enter into the supply of alcoholic beverages products through the wholesale market.

B. Conclusion of contracts

피고인 회사는 약주 거래와 관련하여 특정주류면허를 갖고 있는 □□도매점(점장 공소외 1)과는 2000. 3. 15.부터, ◇◇도매점(점장 공소외 2)과는 1999. 12. 21.부터, ☆☆도매점(점장 공소외 3)과는 2001. 12. 12.부터, ○○도매점(점장 공소외 5)과는 1994. 8. 14.부터, ★★도매점(점장 공소외 6)과는 1995. 7. 25.부터, ▼▼도매점(점장 공소외 7)과는 1996. 2. 28.부터, ◀◀도매점(점장 공소외 8)과는 2000. 10.경부터, ▶▶도매점(점장 공소외 9)과는 2002. 5. 2.부터, ♠♠도매점(점장 공소외 10)과는 1996. 6. 5.부터, ♥♥♥도매점(점장 공소외 11)과는 2007. 4. 1.부터, ♣♣도매점(점장 공소외 12)과는 2005. 9. 15.부터, ♧♧도매점(점장 공소외 13)과는 2001. 6.경부터, (도매점명 1 생략)(점장 공소외 14)과는 2004. 9. 1.부터, (도매점명 2 생략)(점장 공소외 15)과는 2001. 6. 15.부터, △△도매점(점장 공소외 16)과는 1994. 7.경부터, (도매점명 3 생략)(점장 공소외 17)과는 2000. 7. 1.부터, (도매점명 4 생략)(점장 공소외 18)과는 2004. 9. 1.부터 약정기간 1년으로 거래약정을 체결하고 약주 거래를 하여 왔으며, 약정기간 만료시 상호 합의하에 계약을 해지하기로 할 경우가 아니면 자동적으로 약정이 갱신되도록 약정하였다. 아울러 거래약정서상 거래 대상 품목을 피고인 회사가 취급하거나 취급할 약주 품목에 한한다고 제한을 하고 있으며 탁주(막걸리)에 대해서는 별도로 규정하고 있지 아니하다. 그런데, 도매점장들은 사업자등록을 하고 독자적으로 사업하는 독립된 상인이다.

(c) Entering information on customers of wholesale stores;

Since 2006, Defendant Company provided a portable terminal (PDA) to wholesale stores, and had wholesale stores enter individual retail stores of alcoholic beverage products (name of business, tax invoice name, business operator number, corporate number, mail number, telephone number, telephone number, facsimile number, e-mail, representative, representative, resident registration number, type of business, type of business, host Newcom, business district, table number, ▽▽▽▽▽▽▽▽ consumer number), sales information, cash information, specific transaction terms and conditions (amount of provision of private goods) on a portable terminal. Under the direction of representative director, Defendant Company emphasized the importance of information entry in the wholesale store. The Defendant Company stored the above customer information, sales information, cash information, specific transaction terms and conditions, etc., which were entered by wholesale stores, stored in the wholesale server, and provided individual wholesale numbers and passwords to enable perusal of the information by individual wholesale stores, the Defendant Company’s employees and executive officers and employees of the company to provide information within the scope of their respective wholesale stores, including resident registration numbers, etc.

(d) Implementation of a wholesale store assessment system;

Since around 2005, Defendant Company has continuously implemented a wholesale store evaluation system with the target sales achievement rate as an evaluation factor for individual wholesale stores. In particular, from around September 2008, the evaluation of the achievement rate of the shipment sales of goods, a new product, was conducted, and the upper-level wholesale store shall be rewarded, but the upper-level wholesale store shall be given a warning once to the 10% wholesale store lower than the quarterly sales achievement rate, and the cumulative wholesale store three times the annual warning was implemented.

[Specific Crime]

1. Presumption

Around November 2008, Defendant Company established and implemented an innovation task, which is a wholesale store restructuring plan, in order to eliminate the existing wholesale stores with insufficient business performance and expand direct wholesale stores that can lead wholesale stores business activities in major areas under the direction of Defendant 1, the representative director of the interest, as the sales of main goods of the company, such as the ▽▽▽△△, decreased. Defendant 1 and Defendant 2 received reports from Defendant 3 from time to time, and directed Defendant 1 and Defendant 2 to perform duties.

According to the restructuring plan, Defendant Company selected each wholesale store as a target of withdrawing the wholesale store which has been assessed with a total of less than 60 points by evaluating three aspects of market management, organization management, and wholesale store capacity of each wholesale store. The market management evaluation items include the ratio of achieving the shipment target of individual wholesale stores (the ratio of achieving the shipment target amount compared to the target amount set by Defendant Company) and the ratio of salesroom occupants (the ratio of sales store to the sales store in comparison with the objectives set by the Defendant Company), and the number of salesroom members (the ratio of sales store in comparison with the ▽▽▽▽▽▽▽▽▽▽△△△△△△△△

Defendant Company decided to replace 23 of 74 wholesale stores across the country by June 2009 in accordance with the restructuring plan around February 2, 2009. As the wholesale store subject to discharge continues to operate its business before the contract expires, Defendant Company provided new wholesale stores by dispatching its head office staff to the area where the new wholesale store exists. Defendant Company became aware that around March 2009, it is highly likely that the transaction dependence on Defendant Company, such as Defendant Company’s wholesale store, is very high, or that it constitutes unfair trade practices at the time of termination of the contract due to the reasons such as the failure of the designated sales target, etc.

Upon the process of the Defendant Company’s plan for restructuring of wholesale stores, 24 wholesale stores located in the Seoul metropolitan area, which became aware of the plan was organized by the Seoul metropolitan area wholesale center’s council, and on March 8, 2009, collectively reflected, such as the suspension of restructuring plan, management right, goodwill, guarantee of premium, etc. through certification of contents. Accordingly, around March 19, 2009, the Defendant Company prepared an additional plan for responding to collective action of wholesale stores, and continued to operate its business by directly operating the headquarters instead of the vacancy of wholesale stores subject to withdrawal through wholesale stores, and the withdrawal of the said council was closed to individual wholesale stores. In particular, the Defendant Company failed to receive new wholesale stores’ new wholesale stores’ removal of wholesale stores from the above executive council’s wholesale stores [0, △△△, and ○○ store’s wholesale store’s removal without the consent of the existing wholesale store’s new wholesale store’s removal to the existing wholesale store’s removal of the premium by 10 months after the implementation of wholesale stores’ new wholesale stores.

2. Defendants’ crimes

A. Joint principal offenders committed by Defendants 1, 2, and 3

(i) interference with business;

Defendant 1, Defendant 2, and Defendant 3 conspired and interfered with the operation of the wholesale store by force of the victims who are the relevant wholesale store by taking advantage of the relationship between the Defendant company and the wholesale store by means of the following methods:

A) The contract can not be terminated without mutual agreement with the individual wholesale managers under the contract, and the contract with the eight wholesale stores is unilaterally terminated from February 28, 2009 to March 14, 2010 by unilaterally notifying the non-indicted 1 of the termination on December 21, 2009, and unilaterally notifying the termination of the contract to the wholesale stores determined to be retired on March 14, 2010 in accordance with the restructuring plan or its follow-up measures, etc. without any specific reason for termination; and

B) On the other hand, the wholesale store’s evaluation system is continuously implemented to ensure that the given wholesale store falls short of the sales target set by the Defendant Company, while including the achievement rate of the sales target of new products in the evaluation element of the wholesale store’s restructuring plan. From February 2009 to December 2, 2009, the wholesale store in fact forced the wholesale store to purchase the new product in accordance with the established goal by providing for the termination of the contract when the new wholesale store falls short of the sales target. From January 2008 to December 2009, the wholesale store unilaterally set the sales target of the entire liquor including new products, such as new products, which are not much sold to the victims, as shown in the attached Table 2 of the crime committed day list.

C) The supply of quantities is significantly reduced from September 19, 2009 to February 17, 2010, as shown in attached Table 3, with respect to △△△ and △△ wholesale stores decided to leave inside the Defendant Company;

D) Around March 2009, the access to ○○ and △△ Wholesale Store’s wholesale store’s computer system was prevented, and around September 2009, the access to △△ Wholesale Store’s computer system was obstructed, respectively.

2) Violation of the Unfair Competition Prevention Act (Leakage of Business Secrets)

No person shall acquire or use trade secrets or divulge them to a third party for the purpose of obtaining improper profits or inflicting damage on the owner of the trade secrets.

Nevertheless, on March 2009, Defendants 1, 2, and 3 conspired with the wholesale store managers from March 200 to enter into the wholesale store computer system (name of business place, tax invoice name, business number, corporate number, mail number, telephone number, telephone number, fax number, e-mail, representative, resident registration number, representative, type of business, type of business, main mail new, business district, table number, ▽▽▽▽△ consumer sales), sales information, receipts, and specific transaction terms (such as the volume of goods offered) with trade secrets of the wholesale store managers, which were in collusion with the wholesale store managers to early withdraw from the wholesale store. The Defendants failed to use the above customer information entered by △△△, ○○, △△, △△△△△△, and △△△△ branch store's wholesale store's customer information, sales price, specific transaction conditions, etc., which were put into the wholesale store's key customer information, and then presented more specific transaction terms and conditions to △△ branch's customer information to ○○ store's customer information.

3)Violation of Monopoly Regulation and Fair Trade Act

Defendant 1, Defendant 2, and Defendant 3 abuse the fact that the Defendant Company accounts for approximately 60% of the domestic pharmaceutical market and the victims are bound to depend absolutely on the Defendant Company as a specific alcoholic beverage licensing business operator capable of handling approximately 60% of the domestic pharmaceutical market, and in collusion with the wholesale store managers by unfairly taking advantage of their transactional position in the Defendant Company;

A) Unless the contract is to be terminated under mutual agreement with the wholesale store, the agreement is automatically renewed, and the agreement is automatically renewed, barring any particular reason for termination, △△△ Do wholesale store on December 11, 2009, △△ Do wholesale store on December 20, 2009, and △△ Do wholesale store on March 14, 2010, provide disadvantages to unilaterally terminate the transaction by taking advantage of the transaction status of each Defendant company’s transaction position;

B) From September 2009 to March 2010, 201, △△do wholesale store was engaged in unfair trade practices, such as supplying the wholesale store with considerably lower order quantity than the wholesale store’s order quantity by means of manipulating the computer system as shown in the annexed crime list 3, and eliminating or reducing the order quantity, etc. with respect to △△do wholesale store from September 2009 to December 209.

B. Defendant Company

From September 2009 to March 2010, the representative director of the defendant company, Defendant 1, Defendant 2, and Defendant 3 of the wholesale business division committed unfair trade practices in relation to the business of the defendant company, like the above-mentioned A-3).

1. Part of the Defendants’ legal statements

1. Each statement of the witness Nonindicted 2 in the second trial record among the witness’s first and third trial records

1. The witness’s legal statement

1. Each prosecutor's suspect interrogation protocol on Defendants 3, 2, 1, 19, and 20

1. Each prosecutor’s statement on Nonindicted 21 and Nonindicted 6

1. The police statement of Nonindicted Party 1

1. A written statement prepared by Nonindicted 1, Nonindicted 22, Nonindicted 23, Nonindicted 24, Nonindicted 20, Nonindicted 25, Nonindicted 26, Nonindicted 5, Nonindicted 3, Nonindicted 9, Nonindicted 16, Nonindicted 6, Nonindicted 17, Nonindicted 10, Nonindicted 11, Nonindicted 4, Nonindicted 29, Nonindicted 30, Nonindicted 32, Nonindicted 33, Nonindicted 34, Nonindicted 35, Nonindicted 36, Nonindicted 37, Nonindicted 38, Nonindicted 39, and Nonindicted 40

1. A resolution of the Fair Trade Commission;

1. Implementation proposals for the wholesale store assessment system in 05, and allocation of the goals of new products of the defendant company and compulsory distribution of products;

1. A written accusation;

1. Article applicable to criminal facts;

A. Defendants 1, 2, and 3

Articles 314(1) and 30(1) of the Criminal Act; Article 314(1) and Article 30(1) of the Criminal Act; Article 314(1), and Article 30(2) of the Criminal Act (including the rest of business obstruction; hereinafter the same shall apply to △△△, △△, ○○, and △△ Wholesale Store); Article 18(2) of the former Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 11963, Jul. 30, 2013; hereinafter the same shall apply); Article 30 of the Criminal Act [2-A] Article 30 of the former Unfair Competition Prevention and Trade Secret Protection Act does not provide for the definition of “enterprise”; however, “enterprise” means the organization that produces and sells goods or services to obtain prior meaning, and it cannot be interpreted that it does not constitute “enterprise” under the former Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 305, Jul. 30, 2013; hereinafter the same shall apply] Article 208 of the former Unfair Competition Prevention and Trade Protection Act.

B. Defendant Company

Each Monopoly Regulation and Fair Trade Act (Article 70, Article 67 subparagraph 2, and Article 23 (1) 4 of the Monopoly Regulation and Fair Trade Act (including each of them for △△, △△○ Wholesale Store, respectively)

1. Commercial concurrence (defendants 1, 2, and 3);

Articles 40 and 50 of the Criminal Act excluding the crime of interference with business caused by one set of sales target among the crimes of interference with business of Do, △△, and △ Wholesale Store, and the crime of interference with business between the crime of interference with business and the violation of Monopoly Regulation and Fair Trade Act

1. Selection of punishment;

Defendant 1, Defendant 2, and Defendant 3: The choice of imprisonment

1. Aggravation of concurrent crimes;

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

1. Suspension of execution (defendants 1, 2, and 3);

Article 62(1) of the Criminal Code (The following circumstances considered as favorable among the reasons for sentencing)

1. Defendants 1, 2, and 3

The crime of this case is not a good crime because Defendant 1, Defendant 2, and Defendant 3 pressured by taking advantage of the superior position in the transaction for the purpose of restructuring of the wholesale stores of the Defendant company, etc., or set off multiple wholesale stores by using force or in an unlawful way of using trade secrets such as transaction partners information, etc.

On the other hand, as of 2008, the defendant company, which was a main product, reduced by half of 2003 as of the year 2008, and the continuous decline in sales, was in need of restructuring. On the other hand, the supply contract between the defendant company and the wholesale store was a situation in which the contract is continuously renewed without mutual agreement, and the social and economic changes that occur after the contract is continuously renewed without mutual agreement. The defendant 1 and the defendant 3 did not have any record of punishment of imprisonment without prison labor or heavier, and the defendant 2 and the defendant 3 did not have any record of criminal punishment. The defendant 2 and the defendant 3 committed the above illegal acts in the course of performing their duties as the employee of the defendant company in accordance with the company's policy. In relation to the crime of this case, it appears that the crime of this case was established by discretionary adjustment between the defendant company and the defendant company, △△△, and the wholesale store of the city, and thus the defendant company paid all of its money, taking into account the age, character and environment of the defendants, victims and victims, motive and circumstances, etc.

2. Defendant Company

As of the year 2009, Defendant Company was a business entity with approximately 65.3% of the domestic pharmaceutical market, and the representative director, etc. committed such unfair trade practices as above and its nature is not good. On the other hand, as seen earlier, Defendant Company was in a situation requiring wholesale store restructuring, etc. shall determine the punishment as ordered by the order, taking into account all the factors of sentencing, such as the need for wholesale store restructuring.

1. Summary of this part of the facts charged

From March 2009 to March 2010, Defendant 1, the representative director of the Defendant Company, Defendant 2, and Defendant 2-A-2 of the detailed criminal facts as indicated in the judgment by Defendant 3, as well as Defendant 2-A-2 of the wholesale business division, the victim used the trade secrets of △△, ○○, △△△, and △△ wholesale managers in a fraudulent manner.

2. Determination

This is a crime falling under Articles 19 and 18(2) of the former Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 11963, Jul. 30, 2013; hereinafter the same), and the statutory penalty is “a fine equivalent to not less than two times but not more than ten times the amount of the property profit” and the amount of the property profit means the amount of the property profit acquired through the relevant criminal act.

In this case, the prosecutor recognizes that the defendant company acquired and used the trade secrets of this case and the new wholesale store easily obtained a profit from property by securing a customer, and the defendant company's profit from the sales of the new wholesale store was at least 140,609,040 won from September 2009 to February 2010 from the time when the transaction was transferred to a new wholesale store by using the trade secrets of the previous store of the occupant company. The defendant company, who increased the sales of the new customer by taking advantage of the trade secrets of the store store, obtained at least 140,609,040 won from the time when the transaction was transferred to the store from September 2009 to the new wholesale store by using the trade secrets of the store store. Thus, considering the damages of the store store, the defendant company's profit gained by the defendant company at least 140,609,040 won is claimed as 140,609,040 won.

However, in light of the following circumstances, it is difficult to readily conclude that there exists “property benefits” due to the pertinent criminal act, and even if there are family property benefits, the value may not be calculated in detail.

① Since the Defendant Company is punished in accordance with joint penal provisions, the existence and amount of pecuniary gain arising from the pertinent criminal act should be based on the gain earned by Defendant 1, Defendant 2, and Defendant 3. Since the criminal act stated in this part of the facts charged was committed unlawfully using the trade secret (hereinafter “damage wholesale store”) of the wholesale store listed in this part of the facts charged (hereinafter “damage wholesale store”), the benefit accrued therefrom refers to the gain obtained by the unlawful use of the trade secret, and it cannot be deemed that the gain obtained by the acquisition of the trade secret, i.e., the gain obtained by the unlawful use of the trade secret.

However, there is no trace of receiving money or other valuables in return for Defendant 1, Defendant 2, and Defendant 3’s unlawful use of the instant trade secret.

In addition, even if the above defendants obtained property benefits by unfairly using the trade secret of this case by transferring the information about customers of the damaged wholesale store to the new wholesale store in the relationship with the damaged wholesale store, it is merely a fact that the new wholesale store, which is the principal agent of personality separate from the above defendants, obtained property benefits.

(2) Even if a domestic wholesale store should be based on the profits earned by the defendant company, since the new wholesale store is a person separate from the defendant company, even if a new wholesale store has obtained the profits from property raising sales, such profits shall not be deemed as property gains earned by the defendant company, barring any special circumstances.

③ As alleged by the prosecutor, it is reasonable for the above Defendants to have suffered losses from the reduced sales of the damaged wholesale stores, such as the △ wholesale store, etc. by unfairly using the instant trade secret. However, the amount of fine should be calculated based on the property profits earned by the above Defendants, and it cannot be readily concluded that the above Defendants obtained the equivalent financial benefits on the ground that the damaged wholesale stores, such as △ wholesale store, suffered the above losses. Although Article 14-2 of the former Unfair Competition Prevention and Trade Secret Protection Act provides for “the presumption of damages” in relation to the presumption of damages, this is merely a provision on the presumption of damages in the event of claiming damages under civil law, it cannot be deemed that the above provision applies to the calculation of fines.

④ Since the trade secret of this case was unlawfully used to set off the damaged wholesale store early, and such an act was committed to set off the damaged wholesale store, it is reasonable to view the property gains that the said Defendants or the Defendant Company gains from early set off the damaged wholesale store as property gains from the relevant criminal act, but there is no particular data to estimate the amount of such property gains in detail.

3. Conclusion

Thus, since the scope of a fine that can be imposed on the defendant company cannot be set, the defendant company cannot be punished. Therefore, this part of the facts charged constitutes a case where there is no proof of crime and thus, the defendant company is acquitted pursuant to the latter part of Article 325 of the

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

[Attachment]

Judges B. For judges

1) It does not mean the wholesale store operated directly by the Defendant Company, but means the wholesale store operated by the Defendant Company to which the Defendant Company provided funds and operated by its employees. Since the Defendant Company referred to as “direct wholesale store,” it cited it as it is for convenience. The same applies hereinafter.