2017No16555 A. Occupational breach of trust

(b) Violation of the Unfair Competition Prevention and Trade Secret Protection Act (business);

Divulgence, etc. of confidential information)

C. Violation of the Unfair Competition Prevention and Trade Secret Protection Act

1. A.

2.(a) B

3.(a)(c) C

4. D. Stock Company

Defendants and Prosecutor (Defendants)

Lee Jae-sik (prosecution), Yang Jae-young (public trial)

Attorney G (Defendant A and B)

Law Firm E, Attorney F (Defendant C)

Attorney H (for defendant D)

Seoul Central District Court Decision 2015Da7258 Decided April 20, 2017

January 26, 2018

All appeals by the Defendants and the Prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendant A (De facto mistake, misunderstanding of legal principles, and unreasonable sentencing)

1) The victim I Co., Ltd. (hereinafter referred to as the “victim”) did not manage each file listed in the separate sheet of crime (1) as trade secrets. The Defendant did not recognize that the file was trade secrets, and the file was not taken to divulge it to D Co., Ltd. (hereinafter referred to as the “Defendant Co., Ltd.”). The Defendant acquired property benefits equivalent to the above file’s property value and did not cause considerable damage to the damaged company.

2) The sentence sentenced by the first instance court (two years of suspended sentence for one year of imprisonment) is too unreasonable.

B. Defendant B (De facto mistake, misunderstanding of legal principles, unreasonable sentencing)

1) Occupation of occupational breach of trust

Each file listed in the table of crimes (2) Nos. 1, 2, and 3 does not constitute trade secrets of the victimized company. The Defendant merely acquired the said files in the course of collecting educational materials located in the Agency’s official server around December 2009, and merely did not intend to commit occupational breach of trust against the Defendant. The Defendant acquired pecuniary benefits equivalent to the property value of the said files and did not inflict considerable damage on the victimized company.

2) Violation of the Unfair Competition Prevention and Trade Secret Protection Act

It was true that the Defendant sent each file listed in the separate sheet (2) Nos. 1 and 2 to C by e-mail. However, each of the above files cannot be applied to the Defendant Company’s toward China, and the Defendant did not have any intent to utilize it in the development of an upcoming season to China. In addition, it was true that the Defendant received each file listed in the separate sheet (2) Nos. 4 through 7 from S and delivered it to A and C, but the above files are not trade secrets of the victimized Company. The Defendant did not recognize that the above files are trade secrets.

3) Unreasonable sentencing

The punishment sentenced by the first instance court (two years of suspended sentence in one year and six months of imprisonment) is too unreasonable.

C. Defendant C (De facto mistake, misunderstanding of legal principles, and unreasonable sentencing)

1) Each file listed in the separate sheet Nos. 1 and 2 attached hereto was the data of the Z (hereinafter referred to as “Z”) that is not the victimized company. Since there is no evidence that the victimized company or Z managed the said files as trade secrets, it does not constitute trade secrets.

2) The Defendant borrowed the document form or expression of each file in the separate sheet Nos. 1 and 2 as indicated in the separate sheet Nos. 2 and 1 and 2, and is not a misappropriation of the technology of the victimized company. Therefore, the Defendant cannot be deemed to have used the trade secret.

3) The Defendant could not recognize that each file listed in the separate sheet Nos. 1 and 2 Nos. 2 and 1 and 2 was trade secrets of the victimized company, and there was no intention to obtain unjust profits or to inflict damage on the victimized company.

4) The penalty sentenced by the first instance court (a fine of five million won) is too unreasonable.

D. Defendant Company (De facto mistake, misunderstanding of legal principles)

1) As to each file listed in the separate sheet of crimes (2) Nos. 1 and 2, it is not a trade secret since it was the data of Z other than the victimized company, and there is no evidence that the victimized company or Z managed the said files as the trade secret. C merely borrowed the document form or the content of the said files, and therefore, it cannot be deemed as a trade secret. C did not recognize that each file was the trade secret of the victimized company, nor did it aim at obtaining unjust profits or causing damage to the victimized company.

2) As to each file listed in the separate sheet of crimes (2) Nos. 4 through 7, the Defendant cannot be punished unless it is proved that the obligation to maintain trade secrets was imposed on S, that the U.S. corporation managed the above files as trade secrets, and that S offered them to Defendant B constitutes an act of improper disclosure in violation of such obligation.

E. Prosecutor (Factual error, unreasonable sentencing)

1) mistake of facts (as to Defendant D Co., Ltd.)

Although it is reasonable to see that the defendant's proprietary profit acquired due to trade secret infringement B is sufficiently recognized, there is an error of misunderstanding of facts in the judgment of the first instance court which denied it.

2) As to the defendant's unreasonable sentencing (as to the defendant)

The sentence sentenced by the first instance court (for the defendant A, two years of the suspended sentence for one year of imprisonment; for the defendant B, two years of the suspended sentence for one year and six months of imprisonment; for the defendant C, a fine of 5 million won for the defendant; for the defendant the company, a fine of 15 million won for the defendant) is too uneasible.

2. Determination

A. Judgment on the mistake of facts or misapprehension of legal principles by Defendant A

1) Where a company’s employee disclosed to a competitor or ships out the company’s materials without permission for the purpose of using them for his/her own interest, even if the materials do not constitute trade secrets, if the materials are not disclosed to many and unspecified persons, and thus, they cannot normally obtain them without going through the holder, and if the material holder is a considerable time, effort and expenses for the acquisition or development of the materials, and constitutes a major business asset to the extent that the competitor may gain competitive benefits through the use of the materials, this constitutes an occupational breach of duty and constitutes a crime of occupational breach of trust. Meanwhile, even if a company’s employee’s act of taking out the trade secrets or major assets of business by legitimate removal of the materials does not constitute a crime of occupational breach of trust, if the materials were leaked to the competitor or failed to return or discard them for the purpose of using them for his/her own interest even though he/she was obligated to return or destroy them at the time of withdrawal, such act constitutes a crime of occupational breach of trust (see, e.g., Supreme Court Decision 2015Do17628, Jul. 7, 2016).

2) Examining the following circumstances acknowledged by the evidence duly adopted and examined by the first instance court in light of the aforementioned legal principles, it is reasonable to deem that each file listed in the annexed list of crimes (1) constitutes a major asset of the victimized company, and that the Defendant did not return or discard it without permission for the purpose of using it for his own interest even though the Defendant knew at least that he had a duty to destroy the above materials at the time of leaving the victimized company. Accordingly, it is recognized that the Defendant obtained property benefits equivalent to the value of each file listed in the annexed list of crimes (1) and suffered damage equivalent to the same amount to the victimized company. Accordingly, this part of the Defendant’s assertion is without merit.

① On March 1, 2011, the Defendant joined the victimized company and worked as the Technical Design Team Liability Research Institute, and around May 2013, the Defendant divided the talks about the severance from employment between Co-Defendant B and Defendant Company, who works for the Defendant Company. On November 201, 2013, the victimized Company expressed his intention to retire to the victimized Company. Since the victimized Company was in progress with the N Development Project at the time, the Defendant’s withdrawal was likely to cause the divulgence of trade secrets. On January 3, 2014, the Defendant revealed that the Defendant would work in the C CDmer Company, which is not related to the boiler Business, and wanted to retire again, and then entered the Defendant Company on February 3, 2014 after withdrawal from the victimized Company.

② On March 2, 2011, the Defendant entered the victimized company, prepared a written pledge of confidentiality that “it shall not divulge any business secret and confidential information to customers, which he/she has learned in the course of performing his/her duties, to the outside or after his/her retirement (Evidence No. 85 pages 1).” On January 22, 2014, the Defendant: “No trade secret of the victimized company shall be used for any third party in the start-up and competition using it without disclosing or divulging it to a third party; no trade secret of the victimized company shall be transferred to the same competitor company for two years after retirement to protect the trade secret of the victimized company.” (Evidence No. 84 pages).

③ However, from July 9, 2012 to November 25, 2013, the Defendant removed the files listed in the separate sheet (1) from July 9, 2012 to a personal e-mail account. Even after retirement from the victimized company, the Defendant continued to keep the said files without returning or closing them. The Defendant is merely transmitting the files listed in the separate sheet (1) to a personal e-mail in order to handle the company’s business at his own home, and it does not change to the effect that the files were sent to the Defendant company.

However, the leakage of the remaining files except Nos. 1 (1) 1 was discussed about the severance of co-defendant B and Defendant company, and the defendant concentrated six months prior to leaving the damaged company (from August 2013 to November 2013), and the defendant retired from the damaged company and retired from his company as the defendant company that manufactured the boiler and hot water plant like the victimized company (the defendant was employed by the company to conceal it, and the defendant was employed by the company that was not the defendant company as the company, and was employed by the company that was not the defendant company as the company.) The development of the BA boiler development project (one name "A project") was conducted in the past. Since all files described in the attached Table No. 1 (1) are related to the K boiler, the defendant was likely to use the data for the KB project development of the defendant company, the defendant company, who was employed by the domestic boiler and the domestic boiler company, for the purpose of using them in advance from 201 to 202.

④ Comprehensively taking account of the following circumstances, all the files listed in the separate sheet (1) Nos. 1 through 6 are related to the development of K boiler. In light of the circumstances where the victimized company registers them in the SAPLM and manages only the employees of the research institute and technology-related departments without disclosing them to the public, it is reasonable to deem that the aforementioned files are not disclosed to others, other than the victimized company and its employees, and they are acquired or produced by the victimized company in exchange for considerable time and effort and expenses, and they constitute a major business asset that can obtain competitive benefits from the competition company through the use of the said files.

No. 1 CSA Dwing files No. 1 of the AG model published by the injured company to the K market on October 2012 are the design drawings for the core parts of the AG model, and these drawings include detailed measurements, management items, materials, etc. for each core part, so the economic usefulness is recognized.

The respective files indicated in the [Attachment 1] 2 and 4] : (a) contain the contents of the results of the examination conducted by BB, which are the core parts to be applied to the N model that the victimized company will present on July 2014; (b) each file includes not only the results of the BB examination but also the N model photograph prior to the time of the withdrawal; and (c) the economic usefulness is recognized as having been recognized as having been included in the burning technology BC technology. Each file is managed only by the employees of the research institute and the technology-related department registered in the document type R50 of SAPLM.

CFD interpretation results and test results on the establishment of pressure loss (Presponding damage) in the heat exchange model (Presponding damage) as data explaining the internal technology-related departments of the damaged company and the core personnel of the U.S. corporations in connection with the development of the BE model, which was released on October 2013, the files No. 1) No. 3 of the table for crimes subject to BD, which were released on October 2013, include not only the heat exchange design technology, but also the know-how that the damaged company had experienced while entering the K market in 2008, can secure the technology necessary for the development of the K boiler without error. The file is registered in SAPL type R 40, and is managed so that only the employees of research institutes and technology-related departments can be perused.

㉣ 별지 범죄일람표(1) 순번 5번 기재 파일은 현재 개발 진행 중에 있는 급기예열기(배기냉각기)에 대한 개발 Concept 및 가능성 시험결과를 포함하고 있어 그 경제적 유용성이 인정된다.

The file No. 1) No. 6 of the annexed crime sight table (1) contains the following contents: (a) the file is related to the combustion device equipped with a sudden heat exchangeer, which is a specification of the patent application of the exhaust coolant, which is applied to heating-only boiler N, to be presented by the victimized company on July 2014; (b) the high level of heat efficiency can be achieved; and (c) the temperature of the exhaust gas can be drastically lowered to lower the temperature of the exhaust gas so that the exhaust gas can be installed, thereby making it possible to discriminate against the victimized company’s products; (d) the filing date of the above patent has not been disclosed until the date; and (e) the specification is the data registered with SAPLM R80 of the victimized company and managed by considerable effort.

⑤ The Defendant himself was well aware of the fact that the victimized company prevents the Plaintiff from shipping out of the damaged company’s business data by means of controlling the use of the external storage media or keeping the records thereof in the investigative agency, and the victimized company stated that it would not allow the Plaintiff to take out of the outside. As such, the Defendant was aware of the fact that each file indicated in the separate sheet of crime (1) was not a legitimate shipment, or at least was obligated to destroy the said data when the victimized company retires.

(6) As the risk of property damage of the victimized company is realized by the Defendant’s carrying out of the files indicated in the separate sheet of crime (1) for the purpose of using them for his own interest, the risk of occupational breach of trust is realized (see Supreme Court Decision 2003Do4382, Oct. 30, 2003). Therefore, it is reasonable to deem that the Defendant acquired property benefits equivalent to the property value of the aforementioned files and suffered damage equivalent to the same amount to the victimized company by taking them out, as stated in the facts charged, by taking them out.

B. Judgment on the mistake of facts and misapprehension of legal principles by Defendant B

1) As to occupational breach of trust

A) In light of various circumstances acknowledged by the evidence duly adopted and examined, the first instance court determined that each of the materials listed in the [Attachment 1] 1, 2, and 3, which the Defendant had been destroyed or kept without returning after the retirement of the victimized company, constitutes trade secrets or business principal assets, and that the Defendant had the intent to commit occupational breach of trust.

B) In light of the following circumstances revealed in the records in addition to the circumstances presented by the first instance court, the judgment of the first instance court is just and acceptable, and there is no error of law by misunderstanding facts or misunderstanding legal principles, thereby affecting the conclusion of the judgment. Thus, this part of the defendant's assertion is without merit.

(1) In full view of the following circumstances revealed by the evidence duly adopted and examined by the first instance court, it is reasonable to deem that each file listed in Nos. 1, 2, and 3 of the annexed Table of Crimes (2) constitutes a major business asset of the victimized company, since non-officialness and economic usefulness are recognized.

(A) The files listed in No. 2 No. 1 of the annexed Crime List (2) are the program specifications and product circuits to develop the compact boiler product. The main contents of the program and circuit specifications (CH) of the victimized company’s AF gas boiler (CH) program and circuit specifications (scambing approval sources) are summarized and arranged. This is the materials described in order to realize differentiated technologies only the products of the victimized company as circuit and program, and the economic usefulness is recognized, since they are also available for the subsequent boiler model BE, N and hot water seasons.

(B) The files listed in the [Attachment 2] No. 2] are the program of the AF Onnuri (AM and AL) which was initially developed by the victimized company and the circuit formation approval source, and are also available for the development of boiler as well as for the development of the boiler. Since the product development spectrum, function, and history have been explained in detail, the economic usefulness is recognized. The first date of the file is even 2009, but it has been continuously run, and the parts in the development history are included in the part in the development history of 201, and the competitive company is able to fully utilize the results of the victimized company’s efforts throughout several years, such as reducing the period of product development by extracting only the necessary parts.

(C) The term “BG” means the AL model, which was first developed and launched by the victimized company for the first time, and the term “BH” means the AL model developed by improving and developing the problems of the AL model. The files listed in the [Attachment 2] No. 3 include parts of the BG model and the matters to be improved in the contact roll in the process of developing BH hot water. If a competition company obtains the said file, it can acquire know-how without undergoing any error of implementation that the victimized company had experienced in the process of developing the AF hot water product.

(D) Each file listed in the separate sheet of crime (2) Nos. 1 and 2 is designated as core business secrets prior to the introduction of the SAPLM and has been managed to allow access only to some researchers. On October 4, 2011, files with the same content were recorded in SAPLM (Evidence 1/435 pages). The files listed in the separate sheet of crime (No. 3) No. 1/435 pages are limited to leakage to the outside by the security management system of the victimized company, and are managed to allow access only to the researchers related to the relevant project.

(2) The Defendant is merely an acquisition of each file listed in the [Attachment 2] Nos. 1, 2, and 3 to use as educational data. In fact, the fact that the Defendant first stored each file listed in the name of “product education data model” Nos. 1, 2, and 2 in the name of “the first time” (Evidence 2: 1034 pages). However, around 2011, the Defendant introduced SAP, which is a system security management that grants only some rights to access data to the damaged company, and the Defendant was well aware of such fact. At the time of withdrawal of the victimized company, the Defendant did not destroy it or return it to the victimized company, and the Defendant did not accept the Defendant’s employment at least after the withdrawal of the victimized company, the Defendant did not make an investment in research and development, and the Defendant did not intend to use each file for the purpose of developing the Defendant’s respective product under [Attachment 2]’s name for the purpose of using the Defendant’s respective research and development of the Defendant’s boiler (see [Attachment 2].

(3) The risk of property damage of the victimized company is realized as the risk of occupational breach of trust is realized by the Defendant carrying out, without permission, the files listed in the separate sheet (2) Nos. 1, 2, and 3 for the purpose of using them for his own interest (see Supreme Court Decision 2003Do4382, Jan. 10, 2003). Thus, it is reasonable to deem that the Defendant obtained property benefits equivalent to the property value of the above files and suffered damage equivalent to the same amount to the victimized company by taking out them out as stated in the facts charged.

2) As to the violation of the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter “Unfair Competition Prevention Act”).

A) Comprehensively taking account of the following circumstances revealed by the evidence duly adopted and examined by the first instance court, it is reasonable to view that all of the files listed in the annexed Table (2) Nos. 1, 2, and 4 through 7 constituted trade secrets of the victimized company.

(1) In light of the circumstances acknowledged earlier, the contents of each file Nos. 1 and 2 listed in the separate sheet (2) Nos. 1 and 2 are not known to the public, having independent economic value, and are recognized as information that has been kept confidential by considerable effort, and thus constitutes trade secrets of the victimized company.

(2) The files listed in the [Attachment 4] No. 4] are prepared by reviewing the structure and performance of the ICJ, a competitor of the North America-U.S.-style market, at the reliability team of the victimized company, with an independent economic value because the victimized company has invested a large number of time and expenses based on the unique test standards, and made an independent review of the products of the competitor. In addition, the test standards within the victimized company are limited access rights to allow only the reliability team leader and the team leader of the technology related.

(3) The files listed in the [Attachment 2] Nos. 5 through 7 are documents related to certification made by the victimized company not only the U.S. CSA certification but also the documents related to certification. The files described in the [Attachment 5] are materials generally explained on the structure, main parts, and operation of the hot water system, which can be easily identified how the damaged company’s hot water system can operate. The files described in the [Attachment 6] include circuit specifications applied to the hot water system control tower, which clearly explain the main quantity of the circuit design to the hot water system, and can easily grasp the damaged company’s hot water system. The files mentioned in the [Attachment 7] are materials that explain the structure, appearance, analysis, malfunction analysis, and self-verification of the contents of the program development as materials that explain the whole technical content and design content of the program development. Since the damaged company studies the technology included in the above certification document and make the aforementioned files more than three to four years-4 hours-old and more of input costs, it is recognized that economic utility is sufficiently recognized.

(4) Although the files listed in the separate sheet (2) Nos. 5 through 7 are all the files generated prior to the introduction of the SAPLM, the leakage of the files is restricted by the general security management system of the victimized company, and only the team leader of the technology-related team can be shared with each other (S was the head of the U.S. corporation that was the injured company at the beginning of August 2012. At the time, the files listed in the separate sheet (2) Nos. 4 through 5 through 7 were shared to him at the executive conference of the PSA Council in relation to the release of new products of the victimized company at the time of the release of new products or the examination of other products, and each file listed in the separate sheet (2) Nos. 5 through 7 are shared to him in the sense that they were delivered to the persons related to the U.S. CSA certification institution, it is recognized that S had the authority to handle each of the files at the time, and such files do not deny confidentiality or secrecy management solely on the basis that they were possessed.

B) Comprehensively taking account of the following circumstances revealed by the same evidence, even though each file listed in the separate sheet (2) Nos. 1, 2, and 4 through 7 is sufficiently recognized as a trade secret of the victimized company, the Defendant disclosed each file listed in the separate sheet (2) Nos. 1, 2 to C for the purpose of obtaining unjust profits or causing damage to the victimized company, and the Defendant acquired each file listed in the separate sheet (2) Nos. 4 through 7 of the separate sheet (2) from S for the purpose of disclosing it to A, C (5 to 7). Thus, it is sufficiently recognized that the Defendant obtained each file listed in the separate sheet (2) Nos. 4 through 7 of the separate sheet (2) and obtained it from S for the purpose of obtaining unjust profits or causing damage to the victimized company.

(1) As seen earlier, as the Defendant was in office as the research and development team leader at the victimized company, he was well aware of the value of each file listed in the separate crime list (2) Nos. 1, 2, and 4 through 7. It is reasonable to deem that the Defendant was also aware of the confidentiality management nature of the victimized company. However, the Defendant’s company stated that “A in charge of hot water and boiler control technology is the letter of intent of the victimized company, and see this in preparing a letter of intent of the Defendant company’s product,” and sent each file listed in the separate crime list Nos. 1, 2, and 1, and 2, and C borrowed the above file form and some expressions, thereby preparing the Defendant company’s product specifications.

[Defendant stated that “C sent a file to the meaning of referring to the files Nos. 1 and 2 related to the control part because it was a software researcher including the control part at the time of prosecution investigation.” This means referring to referring to the above files, which are trade secrets of the victimized company, and thus the intention and purpose of divulging trade secrets is sufficiently recognized.”

(2) In the first instance court, the Defendant recognized that he requested S to change the comprehensive data on the products such as the U.S. environment (the trial record 1:293 pages). The Defendant appears to have been aware that S was the head of the U.S. corporation that was the head of the damaged company and was capable of possessing the useful trade secrets of the victimized company. Each file listed in the separate crime list (2) Nos. 4 through 7 is a review report on the AF AF AF AF AF SA Certification Document or the AI's AF SF SV SV SV Products, which has high share in the AF SA Certification Document or the AF SS SV SB S SV Products, which was useful information for the Defendant company to develop the KB boiler Products. The sign of the above file is indicated as the materials of the victimized company, and the Defendant sent each file listed in the separate crime list Nos. 4 through 7 to the Co-Defendant C by e-mail, and the Defendant demanded the Co-Defendant to obtain the supplementary data and obtained the supplementary data from the Defendant.

C. Judgment on the misconception of facts and misapprehension of legal principles by Defendant C and Defendant Company

1) As to whether each file listed in the separate sheet Nos. 1 and 2 of the crime list (2) is trade secrets of the victimized company

Defendant C and Defendant Company asserted that each file listed in the separate sheet Nos. 1 and 2 is the data of the victimized Company, and that it is not a trade secret since it is not a confidential management. However, the first instance court determined that the files listed in the separate sheet Nos. 1 and 2 are the data of the victimized Company. However, considering the circumstances acknowledged by the evidence duly adopted and investigated, the researchers of the victimized Company and Z were working at the same office, namely, the contact tower of each file listed in the separate sheet Nos. 1 and 2, and the research institute of the victimized Company jointly participated in the joint development and preparation, and all of them were supplied to the victimized Company. Since the Z was the parts that manufactured the contact roll, it is reasonable to view that the files listed in the separate sheet Nos. 2 and 1 and 2 were the data of the victimized Company, the first instance court’s judgment is reasonable and acceptable, and there is no error as otherwise alleged by the Defendants in the separate sheet No. 1 and 200, respectively.

2) As to whether Defendant C can be seen as “use of trade secrets”

A) Use of a trade secret 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 projects, by using it for the original purpose of use of the trade secret (see, e.g., Supreme Court Decision 2008Do9433, Oct. 15, 2009) and that specifically specific act is used for business activities (see, e.g., Supreme Court Decision 2008Do9433, Oct. 15, 2009). Not only where a trade secret produces a product by simply reproducing a technology which is a trade secret, but also where an error is reduced or necessary test is omitted by referring to another person’s

B) The files listed in the separate list of crimes (2) Nos. 1 and 2 are “the program specifications to develop the compboil product” and include the circuit of the product, and the program specifications are organized to enable a person who participates in the program to report and download the program specifications, and the two files are “AF type approval source for the program and circuit formation.” The two files are “the program and the circuit formation approval source for the damaged company’s products”. Each of the above materials are written in order to realize the differentiated technology of only the damaged company’s products as circuits and programs, as well as follow-up materials that can be used as materials that can be described in the development boiler.

C) In addition, the circumstances revealed by the first instance court and the evidence duly adopted and investigated by the CBB, namely, Co-Defendant C’s appearance of the damaged company’s product, and see the FBBC’s product specifications and specifications, and Defendant C sent each file listed in the separate sheet Nos. 1 and 2, respectively, to the effect that the FBB would have been using the FBB B B B B B B B B B B B B B B B B B B B B B B B B B B B B B B B B B B B B B B B B B B B B B B B B BD to the effect that it would have been using the FB B B B B B B B B B B B B B B B B B B B B B B B B B B B B B B B B B B BD’s product and that the FB B B B B B BD’s product would have been using the FB B B B B B B B B B B B B B B B B BD’s product and that it would have been different from the FB BB B B B B B B B B BD’s product content.

On the other hand, around December 2002, Defendant C entered the Defendant Company and worked as the responsible research institute through the agent, director, and vice-director at the research institute, and was in charge of research to develop boiler and hot water system and control technology designed to design electronic circuits, and the Defendant Company also includes technical data in the Mayang Approval Institute, and thus, Defendant C is not open to the public. However, each file mentioned in the [Attachment 2] Nos. 1 and 2 of the [Attachment 2] includes the injured Company’s trademark, and includes the AF gas boiler, hot water boiler program, and circuit specifications (salong approval board). In full view of the fact that Defendant C drafted a hot water boiler form by referring to the above files, it is sufficient to view that Defendant C had the intent to obtain intentional or unjust profits or to inflict damage on the damaged Company. Therefore, this part of the Defendants’ assertion is without merit.

3) We examine whether the S’s improper disclosure of each file listed in [Attachment 4-7] Nos. 4-7 of the crime sight table (2) should be proven.

Defendant Company asserts that the act of leakage of priority in relation to each file listed in the separate sheet (2) Nos. 4 through 7 shall be proved to be an act of improper disclosure. However, as examined earlier, Defendant Company is punished in accordance with joint penal provisions as to the act of Co-Defendant B, not S with respect to each file. Therefore, as to Defendant Company, each file listed in the separate sheet (2) Nos. 4 through 7 of the separate sheet of crime (2) transmitted by S with e-mail to Co-Defendant A and C is sufficient if it is proved that Defendant Company divulged of the damaged company’s trade secret by delivering each file listed in the separate sheet (2-B) Nos. 4 through 7 of the separate sheet of crime (2-2 of the facts charged in this case by Defendant Company) is sufficient (this part of the separate sheet of crime No. 2-B, 2-2 of the facts charged in this case). Since each file listed in the separate sheet (2-4 through 7) constitutes an act of leakage of trade secret to Defendant B and thus, regardless of whether Defendant’s duty to obtain or obtain unfair profit from Defendant C’s.

E. Judgment on the prosecutor's assertion of mistake

1) In order to determine a fine to be imposed on a defendant company pursuant to 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), the first instance court acquitted the defendant company of violation of the Unfair Competition Prevention Act due to the divulgence of trade secrets under Article 2-B(1) and Article 2-2(b) of the facts charged in the instant case on the ground that the evidence submitted by the prosecutor cannot be calculated solely.

2) Upon examining the following circumstances in light of the circumstances presented by the first instance court, the decision of the first instance is justifiable, and there is no error of law by mistake as to the amount of profit generated by the defendant company by divulging or acquiring trade secrets of the damaged company, which affected the conclusion of the judgment. Accordingly, the prosecutor's allegation in this part is without merit.

① This part of the facts charged by the Defendant Company is a crime falling under Article 19 and Article 18(2) of the former Unfair Competition Prevention Act, and its statutory penalty is “a fine equivalent to two to ten times the amount of profit derived from the property.” Since the Defendant Company is punished by joint penal provisions, the existence and amount of pecuniary gain arising from the relevant criminal act shall be as stated in Article 2-b(1) of the facts charged, Defendant B sent each file Nos. 1 and 2 of the annexed crime list (2) to Co-Defendant C by e-mail, and shall divulge the trade secret of the victimized Company, and as described in Article 2-b(2) of the above facts charged, the calculation of the amount of profit gained by acquiring the trade secret of the victimized Company after transmitting each file Nos. 4 through 7 of the annexed crime list (2) from S through e-mail.

② However, “I statement of calculation of the cost relating to the preparation of the letter of intent submitted by the prosecutor” is related to all the expenses incurred by the damaged company in the development project from 2005 to 2009, and all of them cannot be deemed to have been inputs into each file listed in the table of crimes (2) Nos. 4 to 7. Based on this, it is difficult to specify research and development costs incurred only in each file, and “the statement of calculation of the amount of damage to the U.S. corporation that suffered damage” is insufficient to estimate the amount equivalent to the property value of each of the above files based on the evidence to estimate the performance data of the victimized company from 2011 to 2013, reflecting the performance data of the U.S. corporation from 2014 to 2017, and there is no other evidence to acknowledge it.

③ In addition, the records of this case, even if Defendant B did not have any trace of receiving money and valuables in return for illegally divulging each file listed in the separate sheet Nos. 1 and 2 (2), and even if Defendant B could have suffered losses in the future by illegally divulging the above files, it cannot be readily concluded that the above Defendant B obtained property benefits corresponding thereto. The evidence submitted by the prosecutor alone is insufficient to calculate the profit gained by Defendant B from divulging the above file to Co-Defendant C, and there is no other evidence to acknowledge this otherwise.

④ Although Article 14-2 of the former Unfair Competition Prevention Act provides for "the presumption of the amount of damage", it is only a provision concerning the presumption of the amount of damage in the case of claiming civil damages, it cannot be deemed that the above provision applies to the calculation of the amount of fine.

F. Determination on the assertion of unfair sentencing against the Defendants A, B, C, and the Prosecutor

In the instant case where there is no change in the sentencing conditions that would be particularly considered in the appellate trial, comprehensively taking account of the following circumstances, such as the Defendants’ age, character and conduct, environment, health condition, family relationship, motive, means and consequence of the crime, etc., it is difficult to deem that the first instance court’s punishment is too heavy or unreasonable because it goes beyond the scope of discretion. Accordingly, this part of the allegations against the Defendants by Defendant A, B, C, and prosecutor are without merit.

3. Conclusion

Thus, the appeal by the defendants and the prosecutor is without merit, and all of them are dismissed under Article 364 (4) of the Criminal Procedure Act.

Judges Kim Sung-dae

Judges Yang Ro-soon

Judges Lee Jin-jin