[1] The meaning of "trade secret is not known publicly" and "it is maintained as confidential by considerable effort" among the requirements for "trade secret" under Article 2 subparagraph 2 of the former Unfair Competition Prevention and Trade Secret Protection Act

[2] The elements to establish a crime of occupational breach of trust in a case where the company's employee disclosed the company's data to the competitor or removed the company's data without permission for the purpose of using them for his own interest

[1] Article 2 subparagraph 2 of the former Unfair Competition Prevention and Trade Secret Protection Act (Amended by Act No. 11963, Jul. 30, 2013) / [2] Articles 355 (2) and 356 of the Criminal Act; Article 2 subparagraph 2 of the former Unfair Competition Prevention and Trade Secret Protection Act (Amended by Act No. 11963, Jul. 30, 2013); Article 18 (1) [see current Article 18 (1) subparagraph 1 (a) and (2)] and Article 18 (2) of the former Unfair Competition Prevention and Trade Secret Protection Act (Amended by Act No. 11963, Jul. 30, 2013)

[1] Supreme Court Decision 2008Do3435 Decided July 10, 2008 (Gong2008Ha, 1212), Supreme Court Decision 2006Do7916 Decided July 9, 2009 (Gong2009Ha, 1362) Supreme Court Decision 2017Do13791 Decided October 31, 2019 (Gong2019Ha, 2288)/ [2] Supreme Court Decision 2015Do17628 Decided July 7, 2016

Defendant 1 and three others

Prosecutor

LLC, Kim & Lee LLC, Attorneys Seo-soo et al., Counsel for the defendant-appellant

Busan District Court Decision 2014No873 Decided August 30, 2016

All appeals are dismissed.

The grounds of appeal are examined.

1. A. “Trade trade secret” under Article 2 subparag. 2 of the former Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 11963, Jul. 30, 2013; hereinafter “former Unfair Competition Prevention Act”) means any production method, sale method, and other technical or managerial information useful for business activities, which are not known to many and unspecified persons by considerable effort, and are not known to the public. Here, “non-known” means that information cannot be generally obtained without going through a holder because it is not known to the general public, such as the publication, etc., and “a secret maintained by considerable effort” means a mark or notification that can be perceived as a secret, and a person subject to access to such information or a person subject to access to such information is also objectively managed and managed as confidential information, including a person subject to obligation to comply with such information, etc. (see, e.g., Supreme Court Decision 2006Do7916, Jul. 9, 2009). 301.

B. In a case where a company’s employee disclosed materials to a competitor or ships them out without permission for the purpose of using them for one’s own interest, the crime of occupational breach of trust is established, even if such materials do not constitute trade secrets, and thus, they cannot be ordinarily obtained without going through the holder as they are not disclosed to many and unspecified persons. The holder of such materials is a considerable time, effort and cost for the acquisition or development of such materials, and should fall under a major business asset to the extent that the use of such materials may bring competition to the competitor (see, e.g., Supreme Court Decision 2015Do17628, Jul. 7, 2016).

2. The court below reversed the judgment of the court of first instance which found the Defendants guilty on the grounds that there was no proof of the crime of violation of the former Unfair Competition Prevention Act (Leakage of business secrets, etc.) against the Defendants and the crime of occupational breach of trust against Defendant 1, and sentenced the Defendants not guilty. Examining the reasoning of the judgment below in light of the records, the judgment of the court below may be deemed to be based on the legal principles as seen earlier, and there were no errors by exceeding the bounds of the principle of free evaluation of evidence in violation of the logical and empirical rules or by misapprehending

3. Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok (Presiding Justice)