[1] The standard for determining whether an agreement on prohibition of competitive business concluded by an employer with an employee is null and void pursuant to Article 103 of the Civil Code

[2] The case affirming the application for provisional disposition, in case where Gap company Gap, which mainly runs the business of receiving and power generation business, retired and transferred its business to Eul, a competitor company, pursuant to the competition prohibition agreement that it concluded while in office as Gap company, filed an application for provisional disposition against Eul, the case affirming the application for provisional disposition on the ground that the above competition prohibition agreement is valid as it does not violate good morals and other social order

[1] Even if an agreement exists between an employer and an employee on the prohibition of competitive business, if such agreement excessively limits the freedom of occupation, the right to work, etc. of an employee guaranteed under the Constitution or excessively limits free competition, it shall be deemed null and void as a juristic act contrary to good morals and other social order under Article 103 of the Civil Act. The validity of the agreement on the prohibition of competitive business shall be determined by comprehensively taking into account the interests of the employer, the status of the employee, the period and area of the restriction on competitive business, the occupation of the employee, the existence of the employee’s subject to the restriction on competitive business, the details of the employee’s retirement, the public interest, and other circumstances. The term “the benefit of the employer at value to be protected” in this context constitutes not only the “trade secret” under Article 2 subparag. 2 of the Unfair Competition Prevention and Trade Secret Protection Act, but also the knowledge or information that the employee only has, and it is agreed not

[2] In a case where Gap company Gap, which received and carried out related construction works in each country of the world on the basis of technology accumulated in the field of fences and development, entered into an agreement for prohibition of competitive business to the effect that "it shall not be transferred to the same company as the above company or a competitor company in any country, region, including the Republic of Korea for a certain period of time after retirement," while continuing to work in this field, and then transferred the company to Eul company as a competitor company which entered the above business field after retirement, and then filed an application for prohibition of competitive business pursuant to the above agreement, the case holding that the above management prohibition agreement is valid as it does not go against good morals and other social order, and thus, accepted the application for prohibition of competitive business

[1] Articles 103 and 105 of the Civil Act, Article 2 subparag. 2 of the Unfair Competition Prevention and Trade Secret Protection Act / [2] Articles 103 and 105 of the Civil Act, Article 2 subparag. 2 of the Unfair Competition Prevention and Trade Secret Protection Act, Article 300 of the Civil Execution Act

B. Busan Heavy Industries Co., Ltd. (Attorneys Lee Tae-sub et al., Counsel for the defendant-appellant)

Respondent and 12 others (Law Firm Lee, Kim & Lee LLC, Attorneys Lee Dong- New et al., Counsel for the defendant-appellant)

1. Subject to the condition that the applicant deposits KRW 1,00,000 (1,00,000) as a guarantee for the respondent or submits a payment guarantee consignment contract document with the same amount as the insured amount:

(a) The respondent shall not be engaged in affairs related to the gathering and development of the above company by hiring each EEE (STX) Heavy Industries Co., Ltd. or by any other means until the expiration of the period of prohibition of competitive business listed in the attached list.

B. Where the respondent violates the above order, it shall pay to the applicant 1,000,000 won per day of each violation.

2. Litigation costs shall be borne by the respondent.

The same shall apply to the order.

1. Basic facts

In full view of the purport of the entire examination of the records of this case, the following facts are substantiated.

(a) An applicant's business outline;

An applicant (hereinafter referred to as “applicant company”) is a company that mainly engages in the business of water gathering (the business of providing equipment converting salt, including seawater, into drinking water, water for industrial use, etc.) and the business of developing electricity (the business of providing equipment converting heat-related fuel, such as coal, oil, and gas into electricity energy by boiler, turbine, etc.). The applicant has the global highest position when it is based on the production capacity of water-related facilities in the field of water gathering, and has the capacity to independently perform the pre-construction, construction, trial operation, and follow-up management of the basic design through the accumulation of technology for 30 years, and has the capacity to independently perform the pre-construction, construction, and follow-up management of the basic design every year in each world including Saudidivia. In addition, the applicant has the capacity to perform the construction works independently through accumulation of technology for at least 30 years in the field of power generation, and has the capacity to perform the construction works independently in each country.

B. Work relations in the respondent's company

The respondent was employed in the applicant company and retired from the applicant company on or around 2006 through 2007 (the respondent retired from office by the source, and there is no person dismissed by the applicant). The period, major career, main service, main service and major projects, etc. for which the respondent worked in the applicant company are as follows.

본문내 포함된 표 성 명 근무기간 주요 경력 주요 취급업무 주요 프로젝트 특기사항 피신청인 1 81. 1. 1. - 07. 4. 9. 담수 비즈니스그룹장, 기술연구원장, 고문 담수 사업 설계 및 기술 후자이라, 움알나르 등 04. 4. 1. - 07. 4. 9. 고문 재직 피신청인 2 81. 1. 25. - 06. 12. 28. 담수 영업담당 상무, MED사업담당 상무 담수 및 발전 사업 영업 후자이라, 움알나르 등 ？ 피신청인 3 81. 2. 6. - 06. 4. 9. 담수 영업담당 전무, 고문 담수 사업 영업 및 입찰 후자이라, 움알나르 등 04. 4. 1. - 06. 4. 9. 고문 재직 피신청인 4 82. 12. 20. - 07. 7. 12. 화력설비기술팀장, 암만/다하르키 EM TFT 팀장 발전 사업 기술 북제주 주기기 기자재 공급 등 ？ 피신청인 5 91. 12. 16. - 07. 5. 15. 발전 전기계장팀 선임 발전 사업 기술 남제주 3/4호기 공사 등 ？ 피신청인 6 96. 1. 1. - 07. 9. 30. 담수 영업1팀 과장 담수 사업 입찰 라스라판 C IWPP 등 ？ 피신청인 7 87. 1. 12. - 07. 9. 16. 담수 POM팀 과장 화공 설계 소하르 등 2003.부터 담수 업무 담당 피신청인 8 93. 1. 1. - 07. 9. 7. 담수 영업2팀 차장 담수 사업 영업 후자이라 F2 IWPP 등 ？ 피신청인 9 94. 12. 20. - 01. 2. 5. / 05. 7. 29. - 06. 7. 28. 복합화력배관기술팀 과장, 담수 엔지니어링팀 차장 담수 및 발전 사업 배관 소하르 IWPP 등 01. 2. 5. 의원면직 후 계약직 재입사 피신청인 10 93. 12. 6. - 07. 8. 20. 발전 전기계장팀 과장 발전 사업 전기기술 소하르 등 ？ 피신청인 11 87. 3. 31. - 07. 8. 17. 발전 환경기술팀 차장 발전 사업 환경기술 포스코 탈황/탈질 공사 등 ？ 피신청인 12 87. 1. 12. - 01. 2. 5. / 03. 7. 15. - 07. 7. 14. 발전 증기터빈 기본설계팀 과장 발전 사업 터빈기술 신월성 증기터빈 1, 2호기 설계 등 01. 2. 5. 의원면직 후 계약직 재입사 피신청인 13 93. 1. 1. - 07. 5. 31. 발전 기술팀 과장 발전 사업 화력설비 북제주 주기기 기자재 공급 등 ？

C. Management of the applicant company's trade secrets, etc. and competitive prohibition agreements with the respondent;

(1) In order to manage various materials, such as documents and files, as trade secrets, the applicant company: (a) established a security regulation; (b) classified the contents of the confidential information, which might be prejudicial to the interests of the company, into “important expenses” or “private expenses”; (c) managed the confidential information, which could be accessible to documents or data; and (d) prohibited the reproduction, release, personal storage, etc. of confidential information; and (e) appointed a security officer in charge of security; (b) appointed a security officer in the department; and (c) frequently conducted security education and security inspection to the employees. With regard to the information security system, the applicant company classified the information security system into fire walls installation in 1997; (d) the introduction of the electronic settlement system in 200; (e) the establishment of the integrated certification system in 204; (e) the installation of the electronic document processing system in company; and (e) the installation of electronic document processing system in company; and (e) the installation of technical security related to the external access control system; and (e) the applicant company managed the technical development and operation of the electronic data.

(2) As part of the above protection of trade secrets, the applicant company was urged to maintain confidentiality and competitive prohibition pledges. The respondent has prepared a non-confidential and competitive prohibition pledge while working for the applicant company. The key contents are as follows: ① Information on the manufacturing technology and design of the product; information on the planning and development of the product; information on the price of the manufacturer; information on the financial status of the product; information on the financial affairs; information on the personnel affairs; information on the applicant company's subsidiaries and related companies; information on the applicant company's business alliance; information on the applicant company's business performance; information on its subsidiaries and related companies; information on the applicant company's business records; information on the applicant company's business process; information on the applicant company's sample; information on the applicant company's confidential information; information on the applicant company's business information; information on the applicant company; information on the manufacturer's price; information on the third party's business information; information on the applicant; information on the applicant; information on the applicant; information on the applicant; information on the third party's business operation; information on the third party's or other information;

D. The Respondent’s retirement and change of occupation, and violation of the applicant company’s trade secret

(1) EEEXS Industries Co., Ltd. (hereinafter “EEE”) was mainly engaged in the manufacture of ship engines, etc., and around June 2007, when entering into an industrial plant business, it was intended to implement a straw and power generation business.

(2) The respondent retired from the applicant company for more than 8 years to 25 years, and was employed in EEE from June 2007 to October 20. Most of the respondent received higher class than the applicant company’s class and received higher benefits. The respondent’s employment time and class of EE are as follows.

around June 207, 2007, the respondent 2, the vice president of the industrial plant division planning division around June 2007 around June 3, 2007, the vice president of the industrial plant division 5207, the respondent 6: the vice president of the electricity technology team leader of the industrial plant sector around August 2007 around 7, 2007 around October 10, 2007 around 0, the vice president of the industrial plant system 7,207 around September 7, 2007 around 7, 2007 around 10, the vice president of the electricity technology team leader of the industrial plant sector in the industrial plant division 7, the vice president of the industrial plant division in the industrial plant division 8,207 around October 207, 2007.

(3) The respondent 1, 2, 4, 6, and 12 acquired the applicant company's trade secrets or technical information from the applicant company to the outside of the company, and the details thereof are as follows. ① From June 2002 to December 2004, the respondent 1 stored files such as the applicant company's trade secrets or management of the business, multi-use design program, multi-efficiency design procedure, which are technical data, in the multi-use computer or private-use USB, and removed them from the company to the outside of the company. ② The respondent 20.0 to the 20.7th anniversary of the 207th anniversary of the 206th anniversary of the 206th anniversary of the 7th anniversary of the 206th anniversary of the 17th anniversary of the 2nd anniversary of the 2nd anniversary of the 2nd anniversary of the 2nd anniversary of the 2nd anniversary of the 2nd anniversary of the 2nd anniversary of the 2nd anniversary of the 2nd anniversary of the 7th anniversary of the 7th anniversary of the 2nd of the 7th anniversary of the 3.

(4) On the other hand, the rest of the respondent handled and learned the following trade secrets, business management and technological data while working for the applicant company. In other words, ① the respondent 3 dealt with and learned the following trade secrets, business strategies, and tendering materials, etc.: ② the respondent 5 is the applicant company's order specifications, ② the respondent 7 is the materials, etc. related to the specifications of the purchase of major machinery and equipment; ③ the respondent 7 is the Respondent 7 is the production schedule and supply processes; ④ the Respondent 8 is the bid strategy, negotiation strategies-related materials, ⑤ the Respondent 9 is the materials, etc. related to the pipe design drawings and layout level, ⑤ the Respondent 10 is the Respondent 10 is the Respondent, 7 is the Respondent 11 is the Respondent related materials, and 13 is the technical evaluation statements and estimates related to the mechanical field.

(e) Use of trade secrets, etc. of the applicant company of EE and the progress of related criminal cases;

(1) The respondent 1, 2, 3, 4, and 5 used trade secrets acquired from the applicant company as reference materials in relation to the preparation of proposals, estimated prices, drawings, and the preparation of heat settlement drawings. In particular, in the preparation of the preliminary proposal for the Lbbic Project, the applicant company's shock has used parts of the bid proposal for the two-stage project, the bid proposal for the Mbic Project, and the bid price obtained from the applicant company, and the bid price was determined based on the bid price obtained from the applicant company.

(2) The Seoul Central District Prosecutors' Office prosecuted the same respondent on November 19, 2007 on the charge that the above acts of the respondent 1, 2, 3, 4, and 5 constituted a violation of the Unfair Competition Prevention and Trade Secret Protection Act (Leakage of Confidential Information, etc.). Among them, the respondent 1 and 4 were detained, and the trial is in progress.

2. The assertion and judgment

A. Determination on the grounds for the application

According to the above basic facts, the respondent retired from the applicant company with the status of being aware of or infringed on various trade secrets or management and technological and technological data related to the receiving and developing business for at least 8 years at least 25 years at the applicant company, and transferred the applicant company to E.E. EX which started the same type of fences and development business with the applicant company, barring any other special circumstances, the respondent bears the applicant company's duty of prohibition of competitive business by the expiration date of the period of prohibition of competitive business listed in the attached list.

B. Determination of the respondent's assertion

(1) The assertion that an agreement on the prohibition of competitive business is null and void pursuant to Article 103 of the Civil Act

(A) First, the respondent asserts that their interests worth protecting the applicant company's trade secrets, etc. are not known or infringed, their status in the applicant company was very unstable or bad before her withdrawal, the period of prohibition of competition is too long, there was no reasonable payment under the competition prohibition agreement, and the agreement was not made by the respondent. Thus, the above competition prohibition agreement is null and void against good morals and other social order.

(B) On the other hand, even if there exists a competitive business prohibition agreement between the parties, if such agreement is excessively limited to the freedom of occupation, the right to work, etc. of workers guaranteed under the Constitution or excessively limits free competition, it shall be deemed null and void as a juristic act contrary to good morals and other social order under Article 103 of the Civil Act. The validity of such competitive business prohibition agreement shall be determined by comprehensively taking into account the interests of the employer who is worth protecting the interests, the status of the worker before his retirement, the period and area of restriction on the competitive business, the type of occupation of the worker, the existence of the subject (subject) for the worker, the reason why the worker retires, the public interest, and other circumstances. The employer's profit at the value of protection referred to in this context shall be deemed not only the "trade secret" under Article 2 subparagraph 2 of the Unfair Competition Prevention and Trade Secret Protection Act, but also the knowledge or information that the employer only has, and if it is not disclosed to a third

(C) In full view of the above facts and the following circumstances proved by the records of the instant case, the agreement between the applicant company and the respondent on the prohibition of competitive business between the applicant company and the respondent is not contrary to good morals and other social order, and thus valid.

① In the field of the applicant company's business, the applicant company has obtained global level of technology and orders through performance of its business over 30 years and accumulation of technology, and the applicant company classified and managed important data at each stage in relation to the applicant company's business as trade secrets, and the respondent agreed to return all the applicant company's business, technical useful information, and various documents, files, etc. obtained in office as well as the applicant company's trade secrets to a third party, and the respondent's materials are likely to constitute the applicant company's trade secrets. In addition, if the applicant company is provided to a competitor company as well as domestic trade secrets, it appears that the applicant company can be seen as a useful information that can reduce considerable error. The respondent actually used the applicant company's proposal in the field of EOS projects through data leaked in the applicant company, and it appears that the applicant company's management data and other important information such as information on the applicant company's industrial development for the purpose of protecting the applicant company's industrial development during the period of 207.

② In light of the fact that the respondent was in charge of the directors of the applicant company's gathering group, regular director, managing director, team leader, deputy director, division director, and director of the former applicant company before his retirement, and had expertise in each field. In particular, in the case of the respondent 1 and 3, he was in office as an adviser for 2 years or 3 years after his term of office was terminated, and the applicant company was dismissed, and the applicant company did not seem to have been in an unfair or poor condition compared to other companies in terms of wages, welfare, other treatments, etc., it is not deemed that the respondent's transfer to a competitor was inevitable due to bad or unstable status before his retirement.

③ The period of prohibition of competitive business should be taken into account, focusing on which the respondent’s trade secret infringement due to the change of the respondent’s trade secret begins more favorable than fair competitors, i.e., saving time., the time range necessary to ensure fair and free competition. While the applicant company retains various managerial and technical data through research and development and experience for 30 years with respect to fences and power generation businesses, EE is a company which starts from the source of the applicant company’s organization, management and technology in June 2007, it seems that the applicant company takes considerable time to go through the applicant company’s organization, management and technology. From among the respondent in the agreement on prohibition of competitive business between the applicant and the respondent, the applicant company’s high-ranking executives such as the business group head, the former director, and the latter company dealing with important technology for 3 years or more, 2 years or more, and 1 year or more, or 2 years or more, or 3 years or more for the director of the company involved in the business such as contracts and tendering, it seems that the applicant company has reasonably set its competitive business competitiveness.

④ In the case of the respondent 1 and 3, he/she was employed as an adviser for two or three years after the end of his/her term of office as an executive officer and was treated as an executive officer. In the case of the rest of the respondent, he/she did not receive monetary compensation for a direct reason, but could have been given the guarantee of employment for a long time, and could have an adequate opportunity for promotion and promotion with the expertise in one field. It can be viewed as an object of the non-commercial agreement. Even if the target measure of the applicant company is insufficient, even if the target measure of the applicant company is not sufficient, the size of the profit worth protecting the applicant company is significant, and thus, it cannot be said that the agreement on non-commercial prohibition is invalid merely due to the lack

⑤ In light of the fact that the Respondent’s time when EEEX began to develop and process its business, the Respondent’s retirement time, part of the Respondent’s retirement time, the Respondent’s release of the applicant company’s trade secrets, etc. and used for EE business, although it was not clearly explained by data, it cannot be readily concluded that the rest of the Respondent could not have taken out all kinds of data, etc. while withdrawing the applicant company, and the Respondent was employed in EE with higher class and remuneration compared to the Claimant’s position and salary granted to the applicant company, the Respondent’s transfer to the Respondent’s company is deemed to have been made in accordance with the EE’s plan to obtain information related to the applicant company’s organization, management and technology.

6) If an applicant company orders construction from abroad to a flood control point of view through the accumulation of technology for a long time, thereby promoting national interests and enhancing national prestige and enhancing national prestige, beyond the applicant company itself, it is highly worth protecting the applicant company’s trade secrets, business management, and technical data. In such a situation, if the applicant company employs major officers and employees of the applicant company, infringes on trade secrets, and competes with the applicant company by advertising lower price in the overseas market, in order to overcome the management and technological gap from a short number of years to a short number of years, the applicant company is likely to suffer from a significant impact on the applicant company through research and development and experience for a long time, and ultimately, it is likely that the applicant company will eventually lose its current management and technology level through the applicant company’s research and development and experience for a long time.

(D) Therefore, the respondent's argument that the agreement on the prohibition of competitive business between the applicant company and the respondent is valid, and that the agreement is null and void under Article 103 of the Civil Code is without merit (In addition, the period of prohibition of competitive business under the above agreement is reasonable).

(2) The argument regarding the starting point of the period of prohibition of competition

Next, the respondent asserts that even if the above agreement on the prohibition of competitive business is valid, the respondent 1 and 3 who did not know the trade secret as an adviser shall be deemed to have already started from the commencement of the advisory period and the period of prohibition of competitive business should be deemed to have expired.

In light of the records, the following circumstances revealed by the records, namely, ① the company's non-employment in the same company for a certain period from the date of withdrawal from the company under the agreement between the applicant and the respondent, ② the prohibition of competitive business is limited to the employee's employment in the competitive company with the employer. Thus, the employee's prior application for the prohibition of competitive business could not be made (see Supreme Court Order 2002Ma4380, Jul. 16, 2003) should be calculated on the basis of the time of retirement, unless there are circumstances that the applicant company need to apply for the prohibition of competitive business before the retirement of the respondent 1 and 3, ③ the respondent 1 accessed the applicant company's trade secret, etc. during the period of advisory term, and the respondent 3 was unable to access the applicant company's trade secret as well as the respondent 3. Thus, the respondent's assertion that the period of commencement of competitive business cannot be accepted.

(3) As to the necessity of preservation

Finally, the respondent argues that the EEX has discontinued its business, even if it resumess domestic affairs, the applicant company is planning to conduct it by other RPO methods, and that the power generation business is scheduled to conduct it by PIGCC methods unrelated to the applicant company's technology, so there is no need to preserve the respondent in seeking a non-commercial prohibition.

In light of the following circumstances, which are explained by the record, i.e., (i) the discontinuation of EE-ray's input business is merely a temporary measure due to a criminal case related to the respondent 1, etc., and rather, E-EX seeks to employ a new employee related to the input equipment, etc., (ii) it is difficult to conclude that E-EX's input input business or the development business of PIGCC is unrelated to the applicant company's input input and development business, and (iii) even if there are differences in the detailed methods of E-EX's input input and development business with the applicant company, E-EX is likely to carry out the same kind of business with the applicant company, even if E-EX is likely to carry out the applicant company's input input and development business, the respondent's above assertion is groundless.

(c) Conclusion

Therefore, the applicant has the right to request the issuance of a provisional disposition, such as Paragraph A(a) of the Disposition No. 1, based on the competition prohibition agreement with the respondent, and if the applicant files a lawsuit on the merits, its effectiveness will be lost after the lapse of the period of the competition prohibition, and if the respondent continues to work on EE, the applicant company's trade secret, etc. may continue to be used in EEE business, and the necessity of the order is also recognized as a provisional disposition.

In addition, since it is difficult to see that the respondent's obligation imposed on the respondent by the decision of provisional disposition of this case has a substitute nature, in order to secure effectiveness of the decision of provisional disposition of this case, indirect compulsory performance is ordered without any other execution method except the order of indirect compulsory performance. However, in consideration of all the circumstances revealed in the records, such as the content of the order of provisional disposition of this case, the possibility for the respondent to violate it, the possibility for the respondent to violate it, and the difficulty of recovering damage, etc., the compensation shall be determined in 1,00,000 per day

3. Conclusion

Therefore, the application of this case shall be accepted as a condition for the provision of security, since the need for preservation and preservation has been clearly explained.

Judge Lee Dong-ri (Presiding Judge)