[1] The meaning of "trade secret" among the requirements for "trade secret" under Article 2 subparagraph 2 of the former Unfair Competition Prevention and Trade Secret Protection Act

[2] The case holding that the materials pertaining to the business of a company stored in his own computer, which the employee left with the resignation, cannot be deemed as information maintained in secret by considerable effort, does not constitute "trade secret" under Article 2 subparagraph 2 of the former Unfair Competition Prevention and Trade Secret Protection Act

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

[1] Supreme Court Decision 2008Do3435 Decided July 10, 2008 (Gong2008Ha, 1212), Supreme Court Decision 2006Do8498 Decided January 30, 2009, Supreme Court Decision 2006Do7916 Decided July 9, 2009 (Gong2009Ha, 1362)

Defendant

Defendant

Law Firm Lee & Lee, Attorney Song Young-young

Seoul Southern District Court Decision 2007No1447 Decided April 11, 2008

The conviction part of the judgment of the court below against the defendant is reversed, and that part of the case is remanded to the Seoul Southern District Court Panel Division.

The grounds of appeal are examined.

According to the reasoning of the judgment below, the court below affirmed the judgment of the court of first instance that found the defendant guilty of violating the Unfair Competition Prevention and Trade Secret Protection Act among the facts charged against the defendant on the ground that the defendant's net electric power terminal compensation device product was withdrawn from waco Co., Ltd. (hereinafter "victim Co., Ltd.") and stored in CDs on July 15, 2005, basic information data, business data files and technical trial drawings, customer information, database, Samsung semiconductor technology specifications, etc. (hereinafter "the data of this case") constituted trade secret under Article 2 subparagraph 2 of the former Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 8767 of Dec. 21, 2007; hereinafter "the Unfair Competition Prevention Act").

However, we cannot accept the above determination by the court below for the following reasons.

The term "trade secret" under Article 2 subparagraph 2 of the Unfair Competition Prevention Act means a technical or managerial information that has been kept confidential by considerable efforts. Here, the term "a secret shall be maintained in secret by considerable effort" means a situation where it is recognizable that the information is objectively maintained and managed in secret, such as marking or notifying a person who may access the information, restricting access to the information, or imposing a duty to maintain confidentiality on the person who has access to the information, etc. (see Supreme Court Decision 2006Do8498, Jan. 30, 2009, etc.).

According to the evidence duly admitted by the court below, on July 14, 2005, the day before the defendant's retirement, the victim company received a company confidentiality note that "the non-indicted company will maintain confidential information and data obtained in connection with the performance of its duties at the victim company" from the defendant on July 14, 2005, but on the other hand, according to the above evidence, the data of this case were stored on the computers used by the non-indicted, an employee of the victim company. However, since the above computer did not have a password, any person was using the above computer and was able to peruse or copy the data of this case without any need to input separate password or ID from other computers within the victim company connected with the above computer, and even if the non-indicted was able to peruse or copy the data of this case on a regular basis, the non-indicted kept the data of this case on the CD, but it was difficult for the victim company to use the data of this case without considering the fact that it was hard to use the data of this case by opening it in light of the above legal principles.

Nevertheless, the court below determined that the data of this case constitutes trade secret under Article 2 subparagraph 2 of the Unfair Competition Prevention Act, and maintained the first instance judgment which found the defendant guilty of violating the Unfair Competition Prevention Act. In so doing, the court below erred by misapprehending the legal principles on trade secret under the Unfair Competition Prevention Act, which affected the conclusion of the judgment. The ground of appeal assigning this error has merit

Therefore, without further proceeding to decide on the remaining grounds of appeal, the guilty portion of the judgment below against the defendant is reversed, and this part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)