2012Mo1838. Violation of the Unfair Competition Prevention and Trade Secret Protection Act

(Leakage of Business Secrets, etc.)

B. Occupational breach of trust

1.(a) A

2.(a) B

3.(a) C

Park Jong-il (Court of Prosecution), and Prosecutor Park Jong-il (Court of Public Trial)

Law Firm D (private ships for all of the defendants)

Attorney E in charge, F. G

October 16, 2013

Defendant A shall be punished by imprisonment with prison labor for one year.

However, the execution of the above punishment against Defendant A shall be suspended for two years from the date this judgment became final and conclusive. Defendant B and Defendant C shall be acquitted, respectively.

Criminal facts

Defendant A was employed by the victim H H Co., Ltd. on September 5, 2005 and was in charge of the development of software program, and was employed on March 20, 2009, and was employed on April 2, 2009. A is a corporation established for the purpose of semiconductor equipment manufacturing, etc. A is a corporation. Defendant A is not required to divulge trade secrets of the damaged company to others without permission or to take them out to the outside of the company according to the trade secret protection draft concluded with H Co., Ltd., which was entered into with the victimized company, for any purpose other than business or to use files in which trade secrets are stored. Upon retirement, all trade secrets data should not be returned to or discarded to the damaged company, and even if there was a occupational duty that should not be used for the act of storing and referring them on the computers, etc. of the competing company. However, Defendant A was in violation of the duty to perform the duty of business, which included rader control program materials, etc., which can be used in the entire part of the damaged company.

1. On March 2009, Defendant A acquired 84 files out of the files indicated in the attached list of crimes (except for No. 85 files, No. 84 files) in the attached list of crimes, which are trade secrets, by unauthorized copying and storing 401 files owned by H, the damaged company, such as by linking PCs owned by the Defendant and the damaged company with franchise lines in order to equally meet the IP addresses, sharing networks, and copying 35 files, which are located more than the Nowon-gu, Incheon.

2. On April 2, 2009, Defendant A retired from office C, a competitor company, and then copied 84 copies of the files listed in the attached list of crimes, such as K, a trade secret, within C office at around that time, to the company’s computer and a L computer used for official use.

3. Defendant A used 62 or 66, 70 or 75, or 84 of the files listed in the attached Table of Crimes List as trade secrets by using the radrying equipment, etc. produced in Co., Ltd. in C.

4. As above, Defendant A, in violation of his duties, leaked 85 files listed in the separate sheet of crime list, which are major business assets of the victimized company, including trade secrets, thereby having Defendant and C gain pecuniary advantage in the amount, and suffered pecuniary loss equivalent to the amount, from H to the victimized company.

Summary of Evidence

1. The defendant A's partial statement

1. Legal statement of the witness M;

1. Part of the protocol of examination of witnesses among the protocol of trial 2, 4 through 7 in relation to N, M,O, P,O (1978s) and Q (1973) and part of the protocol of examination of witnesses in the seventh protocol of trial;

1. Examination protocol of the suspect against Defendant A (including N and S statements);

1. Each prosecutor's protocol of statement about N, S,O, and M;

1. Each police statement concerning N;

1. H trade secrets originals (such as patent applications, etc.), H trade secrets protection and management expenses, H technology development pledges and notes, trade secrets protection pledges and respective notes, H security management systems, H security management systems, list of equipment using leaked programs and customers, C manuals, list of computer work applications, source files, e-mail (S) photographs, H radar program T, files (Evidence Nos. 65 through 126), B’s files (Evidence No. 127 through 236), L’s files (Evidence No. 127 through 343), 0’s files (Evidence No. 344 through 348), H’s files (Evidence No. 349 through 438), H’s files (Evidence No. 349 through 438), H’s list, files No. 127 through 4438, list of files in connection with H’s files, list of North Korea No. 349 through 438, list of files in connection with the two file, list of evidence No.

1. Article applicable to criminal facts;

Article 18(2) of the Unfair Competition Prevention and Trade Secret Protection Act (the acquisition, divulgence, and use of trade secrets, including each of them), Articles 356 and 355(2) of the Criminal Act (the point of occupational breach of trust)

Articles 40 and 50 of the Criminal Act, each choice of imprisonment

1. Aggravation for concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act

Judgment on the issues by each defendant

1. Judgment on Defendant A

A. Whether the files of this case constitute trade secrets

(1) Legal principles as to the meaning of trade secrets

"Trade secret" under Article 2 subparagraph 2 of the Unfair Competition Prevention and Trade Secret Protection Act means any technical or managerial information useful for business activities, such as methods of production and sale, which is not known publicly, has independent economic value, and has been maintained in secret by considerable effort.

‘Publicly known information' means information that is not generally known to many and unspecified persons because such information is not known to the general public, such as publication, etc. (see Supreme Court Decision 2002Da60610, Sept. 23, 2004).

The meaning of "the holder of the information has an independent economic value" means that the holder of the information can benefit from competition against the competitor through the use of the information, or that considerable expenses or effort is needed for the acquisition or development of the information. If the information satisfies all the above requirements, the information does not reach the completed stage to the extent that it can be used for the business activity immediately, or does not assist a third party, or if it is a product, it does not interfere with the determination of the above information as a trade secret (see Supreme Court Decision 2005Do623, Feb. 15, 2008).

‘Confidentiality’ means a situation in which it is recognizable that the information is kept confidential by considerable effort, such as making or notifying a person who can be recognized as confidential, limiting access to the information, or imposing a duty to keep confidential on the person who has access to the information, etc. (see Supreme Court Decision 2008Do3435, Jul. 10, 2008).

(2) In light of the following facts that can be recognized by the evidence of this case as to whether the file of this case constitutes a trade secret, the software files (excluding U.S. No. 84) and document files as indicated in the attached list of crimes are deemed to be both non-public nature, economic usefulness, and confidentiality in accordance with the legal principles as seen earlier. Thus, the aforementioned files constitute trade secret.

(가) 반도체 소자의 소형화를 위해 서로 다른 기판 위에 수 개의 패키지를 독립적으로 제작한 다음 각각의 패키지를 연결하는 것이 PoP(Package on Package) 기술인데, 이 기술 중 1세대 PoP 기술은 반도체 소자를 습기나 외부의 충격으로부터 보호하기 위해 부도체(EMC; Epoxy Mold Compound, 이하 'EMC'라 한다)를 반도체 소자에만 형성하였으나 패키지 공정 중 열팽창으로 발생하는 불균형이나 휨 현상이 발생하는 단점이 있었다. 이에 2세대 PoP 기술은 반도체 소자뿐만 아니라 PoP 패키지 전면에 EMC를 형성하여 이러한 문제를 해결하였으나 반도체 소자와 기판 사이에도 EMC로 채워지게 되므로 EMC를 관통하여 솔더볼(Solder Ball; 반도체 소자와 기판 사이의 전기·전자적 연결을 위해 반도체 소자에 형성한 납구슬)까지 통로(Via)를 형성하는 TMV(Through Mold Via) 레이저 드릴링 기술(이하 'TMV 기술'이라 한다)이 필요하다. 이와 같이 레이저로 EMC에 통로를 형성하는 TMV 기술은, 솔더볼의 손상을 최소화하고, 인접한 통로를 형성하는 과정에서 격벽이 무너지는 것을 방지하는 것이 중요한 기술적 과제인데, 피해 회사는 2008. 1.경부터 이러한 기술을 구현한 TMV 장비의 개발을 시작하여 2009. 2.경 반도체 양산이 가능한 기술을 완성하고 TMV 장비를 주식회사 앰코에 납품하였다. 피해 회사는 TMV 장비 제조를 위해 시퀀스 프로그램 기술, MMI 프로그램 기술, 데이터베이스 관련 기술, SECS/GEM 통신 프로그램 기술, 레이저 제어 및 가공 기술 등(이하 '피해 회사 기술정보'라 한다)을 보유하고 있다.

(B) The attached files are the program files created in the process of rationalizing the relevant equipment by the victimized company. In other words, the source files and the program’s concept design drawings and technical documents files, which were made by the victimized company in the process of rationalizing the relevant equipment. After the equipment development commenced, the victimized company has been continuously making considerable time and effort to create the said program, has been modifying the same through continuous tests, and a separate process was recorded using the program called “North Korea”. The aforementioned files are essential materials for operating the equipment of the victimized company, and are difficult to be made to understand the structure and operating principles of the said equipment, and to conduct a practical test, so they are not generally known to many and unspecified persons.

(C) Since the attached files contain information about the structure and operating principles of the victimized company’s program, it is anticipated that there will be a big difference in time and economic cost when the latter or the competition company develops equipment such as the victimized company and the case where the latter or the competitor has the attached file.

(D) The victimized Company: (a) prepared and kept the technical information of the victimized Company in a computer file; and (b) allowed access only to employees with access authority; and (c) managed that only employees with access authority to handle the information stored in a computer in which the victimized Company’s technical information was stored to enter a secret code and access it through authentication. In addition, the victimized Company had the employees obtain approval from the relevant team leader or head of the relevant department when using the Nowon-do or the USB storage device for business trip; and (d) had the process of authentication to access the file containing the technical information.

(3) Judgment on the assertion by the defendant and his defense counsel

In this regard, the defendant and the defense counsel asserts that some of the above program files are already via the Internet or program-related books, or they do not constitute trade secrets because they can be prepared on a short time.

However, even if a source file constituting a program is disclosed to a certain extent, it is an important part of the technological power to implement the file in compliance with the purpose of use by correcting and combining the source files disclosed (see Supreme Court Decision 2007Do11409, Jul. 24, 2008). In the instant case, where multiple source files are prepared for the purpose of controling semiconductor devices and files are made by mixing them with each other, the source files are operated together with each other. As such, the source files fall under one technical information as the whole of the source files, and even if some of the file files of this case do not take many time in the preparation, it is necessary to make considerable effort and cost for the appropriate operation of the source equipment up to that point, even if considering the aforementioned aspects asserted by the Defendant and the defense counsel, trade secrets of the instant file cannot be denied.

(4) Serial 84. Whether the file constitutes a major asset for the crime of trade secrets and occupational breach of trust

(A) The Defendant and the defense counsel asserted that the file No. 84 of the instant file is the technical information of W, not the technical information of the victimized company, and the victimized company only has the authority to use it.

However, according to the evidence of this case, the above file is prepared by W in its own technology, the injured company can use the above file on condition of investing in W, and the injured company can recognize the fact that the above file was not transferred until W. In light of this, it is reasonable to deem that the injured company obtained the exclusive right to use the above file, not the transfer of technical information per se from W, but the exclusive right to use the above file. Therefore, the above file cannot be deemed as a trade secret of the victimized company. (B) However, even if a company's employee's act of taking the above files out without permission from W or its own intent to use them for the benefit of business trust is deemed as a trade secret, even if it does not necessarily need to be disclosed to many and unspecified persons, it cannot be ordinarily obtained without going through the owner, and the above file is not subject to disclosure to the extent that it does not constitute a trade secret, and it is not subject to disclosure to the above company's major business profit, including the above 301 business profit.

B. Whether the trade secret was unlawfully used

(1) Legal principles

The term "use of trade secrets" means an act that is directly or indirectly used for business activities, such as production and sale of goods, etc., or for research and development projects, etc. in accordance with the original purpose of use of trade secrets, and specifically specific.

Meanwhile, if an actor reads a trade secret at the time close to his/her business activity under the intent to use or utilize it in relation to the trade secret in question (if the trade secret is in the form of electromagnetic wave, the act of executing the relevant electromagnetic wave day beyond the storage phase), it can be deemed that the perpetrator started to commit an unlawful use of the trade secret (see Supreme Court Decision 2008Do9433, Oct. 15, 2009).

(2) file files (other than Nos. 62 to 66, 70 to 75, 84)

(A) Determination

In light of the evidence of this case, most of the above files were stored in the Defendant Company’s computer, and then the name of the victimized Company was changed in the name of the Defendant Company, or the content of the code was partially modified, and the Defendant Company’s computer is a program figure for each equipment produced and supplied by the Defendant Company. The above files can be recognized that all of them were stored in one or more sporess. Further, the Defendant recognized the fact that the above 20 files were used in producing the Defendant Company’s equipment program. Since the above files are often connected with the other sporess in most cases, the above 20 files are also used in producing the program.

In light of these points, it is reasonable to evaluate that the defendant used the above files for the purpose of developing the control program of the defendant company beyond the simple storage phase in the computer, or used them as the source files of the control program.

(B) Judgment on the assertion by the defendant and his defense counsel

1) Under the premise that the structure of hardware and software used by the victimized company and the Defendant company differs, the Defendant company and the defense counsel asserted that part of the above files work only in the equipment and program of the victimized company, so it is impossible for the Defendant company to use them, and that about about 20 files recognized by the Defendant as having used do not contain the important technical information of the rash control program.

In this case, since the data related to the program such as the source code of the program actually used by the defendant company is not submitted as evidence, it cannot be directly known whether the program of the defendant company is operated in a way similar to the program of the damaged company or to which degree of difference exists. However, in light of the data submitted by the defendant and his defense counsel, it can be presumed that the defendant company and the damaged company are different from the rash equipment of the damaged company and the program that controls them. Therefore, it can be presumed that the main source code that actually works to make the defendant company and the damaged company operate is different (in related civil cases, about 37 the defendant company submitted the source code list by inserting the "DIR" order into the equipment supplied to Samsung electronic. It is argued that about 70 among them are the same as the file and name stated in the facts charged. Thus, since about 70 bar codes are much used in the facts charged, it cannot be confirmed that the defendant company's damage system is similar unless the defendant company uses it.

Therefore, some of the above files were included in the wind that Defendant A used without correcting the contents of the files held by the victimized Company without correcting them, and even if such files were merged, there is a possibility that the relevant file may not be opened and operated in the actual process of operating the program, and the evidence of this case cannot be seen as having reached the proof to the extent that it excludes such possibility.

However, in order for the source code to be used or used for the production of a program, it cannot be said that the source file has become "the extent to which the source file serves as an actual equipment because it was saved in an action file," and as seen earlier, it is reasonable to evaluate that the whole file of this case is used or used for its intended purpose if the source code is linked to one another, to allow the Defendant to peruse and partly correct the source file, to place it in accordance with its intended purpose, and to make it in a compliance file. Accordingly, the above argument by the Defendant and the defense counsel is without merit.

② The Defendant and the defense counsel asserts that the use of the instant files is impossible, since there are the files that have not been completed among the instant files.

However, as seen earlier, there is no problem that the information yet completed falls under trade secrets, and the defendant can use it as a whole because it is possible to recognize the fact that the defendant either changes the incomplete files out of the file in the instant case beyond the simple storage phase or uses them as classified in the spora of a specific equipment.

(3) According to the evidence of this case, the fact that the above files were stored in the Nopt North Korea, the fact that the above files and other programs files were copied to the computers installed therein in order to repair equipment around August 2009, and the fact that 0 copies of the above files were carried out.

However, it is unclear whether the above files can be operated for the sake of the operation of the damaged company’s equipment and system, and there is room for seeing that the above files can be operated, and it is impossible for the Defendant company to correct and use the files in accordance with its own system. Furthermore, even if the above files were to be used for the purpose of creating a system file suitable for the equipment of the Defendant company, it cannot be concluded that the contents of the files are identical even if the above files were to have been used for the same purpose (in this case, the non-use of the source code was not denied). Furthermore, the above files cannot be readily concluded that the above files were used for the purpose of using the system, as well as for the purpose of creating the system files that are carried out by the victimized company. Furthermore, the above files cannot be determined by the evidence of this case that the above files could not be used for the purpose of using the system, and there is no other evidence that the above files were installed for the purpose of using the system.

Meanwhile, according to the evidence of this case, the establishment file No. 75 of the above No. 75 can be recognized as being copied to North Korea, but it is difficult to readily conclude that the defendant used or used the production program of the defendant company in the process of producing the control program, and there is no obvious evidence to acknowledge that the above strike was actually used or used beyond the reproduction level.

Ultimately, there is insufficient evidence to acknowledge that the above enforcement file and creation file have been used.

(4) Design drawings and document files (Nos. 62 through 66, 70, 71) are technical documents related to the abstract professional engineer of the control program developed by the victimized company, and there is no evidence to acknowledge that the Defendant used the files under the intent to use them for the production of the program after copying them to the Defendant company’s computer. Thus, it cannot be deemed that the Defendant used them.

Although the prosecutor prosecuted to the effect that “it constitutes the use of trade secrets because it was used as educational materials,” it is difficult to acknowledge that it was used as educational materials by the evidence of this case, and even if so, it means that the use of trade secrets is used in accordance with the original purpose of use of trade secrets.” Considering that the trade secrets of this case are technical information about the rash control program, it cannot be deemed as the original purpose of use of the said technical information. If the Defendant actually used the said materials as educational materials, it seems that it is the extension of the disclosure of trade secrets.

In the end, it is not enough to prove that the above files have been used.In conclusion, the theory of lawsuit is insufficient.

(1) Serial 84. The remaining files except U.S. files are trade secrets, so trade secret acquisition and leakage is recognized.

However, since the above file No. 84 is insufficient to prove that it constitutes trade secrets of the victimized company, the acquisition or leakage of trade secrets is not recognized.

(2) The use of trade secrets is recognized for the remaining files except for Nos. 62 to 66, 70 to 75, and 84 files.

However, since the above Nos. 62 to 66, 70 to 75, and 84 files lack of proof and certification (No. 84) as trade secrets related to the use of the files, the use of the files is not recognized.

(3) The attached list files fall under the main assets of the victimized company, and the Defendant’s act of taking them out without permission constitutes a crime of occupational breach of trust.

2. Judgment on Defendant B

A. Summary of the facts charged

Defendant B was employed by the victim H Co., Ltd. and was in charge of the development of software programs on August 2003, and was set off on September 30, 2008, and was employed by Co., Ltd. on June 15, 2009. Co., Ltd is a corporation established for the purpose of semiconductor equipment manufacturing business. Defendant B was a corporation established for the purpose of semiconductor equipment manufacturing business. around July 2006, Co., Ltd was a corporation established for the purpose of Co., Ltd.

around June 2009, the Defendant created part of X bar code, which is kept in the above individual web domains, as a file of the name of Z in C’s office, and around December 2009, the Defendant acquired and used trade secrets useful for the victim company, disclosed them to C, had the Defendant and C obtain the amount of non-property benefits, and suffered property damage equivalent to the amount of the above amount from H to the damaged company.

B. Determination

As seen earlier, in order to constitute a trade secret, the holder of the information must have an independent economic value that “the holder of the information may benefit from competition to the competitor or need considerable expenses or effort to acquire or develop the information.”

However, according to the evidence of this case, it is difficult to view the X bar code reproduced by the Defendant as containing the technical idea on the racer control program itself, and it does not appear that the cost and effort to make the racer control program, which is the technical information of this case, can be considerably reduced on the ground that the Defendant had one of the above files without any other racer codes. Since it does not appear to be a bar code that can be prepared with special technical capabilities based on general computer procer machines, it is difficult to view the above bar code as a trade secret or major business asset of the victim company, and there is no other evidence to acknowledge it differently.

C. Sub-committee

Thus, the acquisition, leakage, use, and occupational breach of trust against Defendant B constitutes a case where there is no proof of a crime, and thus, it is not guilty under the latter part of Article 325 of the Criminal Procedure Act.

3. Determination as to Defendant C

A. Summary of the facts charged

Defendant C, who is an employee of the defendant, committed a violation of the law by acquiring, divulging and using trade secrets of the damaged company in relation to the defendant's business as stated in the above facts and the facts charged.

B. Determination

(1) A’s violation relation

○ acquisition: A is deemed to have acquired the attached files (except No. 84.U.) which are trade secrets in A, as seen in the judgment of A, but the time of acquisition is deemed to be before the defendant company enters the company, so it cannot be deemed to be the act of the employee of the defendant company, and thus the defendant company shall not be held liable to both

○ Disclosure: As seen in the judgment on A, the Defendant Company is liable for both penalties because it is recognized that A, an employee of the Defendant Company, has divulged the attached files (other than U.S. No. 84) that are trade secrets.

○ Use: As seen in the judgment against A, it is recognized that A, an employee of the defendant company, uses the remaining files except for the files Nos. 62 through 66, 70 through 75, and 84. As such, the defendant company is liable for the joint penal provisions.

(2) As seen in the determination on B related to the violation B, the Defendant Company’s liability is not recognized since B’s act does not constitute the acquisition, divulgence, or use of trade secrets (which was not an employee at the time of acquisition).

Article 19 of the Unfair Competition Prevention and Trade Secret Protection Act, the applicable provisions of the indictment, provides that "where a representative of a corporation, or an agent, employee or other servant of the corporation or an individual commits an offence under Article 18 (1) through (3) in connection with the business of the corporation or the individual, not only shall such offender be punished, but also the corporation or the individual shall be punished by a fine under the relevant provisions," and Article 18 (2) provides that "any person who acquires or uses trade secrets useful for the corporation or divulges them to a third party for the purpose of obtaining unjust profits or causing damage to the corporation, shall be punished by imprisonment for not more than five years or by a fine equivalent to not less than two times but not more than ten times the amount of profit in property"

As the scope of a fine is set on the basis of the amount of monetary profit as seen above, if it is not proved that the acquisition or use of trade secrets has caused property benefits, it shall not be punished by a fine, and if it is not proved that the amount of profit is certain, it shall not be determined unless it is proved that the amount of profit is the amount of profit.

However, the prosecutor stated the defendant company's property benefits from the acquisition and use of the trade secret of this case in the amount not less than that of the defendant company, and in light of the evidence of this case, the profit acquired by the defendant company cannot be specified.

Therefore, the part of the facts charged against the Defendant Company constitutes a case where it cannot be punished by a fine pursuant to the joint penal provisions because there is no proof as to the property benefits acquired by the Defendant Company using the instant trade secret.

(Article 18(2) of the same Act, which was amended by Act No. 11963 of July 7, 2013 and enforced six months after the date of its promulgation, shall be punished by imprisonment with prison labor for not more than five years or by a fine not exceeding 50 million won: Provided, That where a person is punished by a fine, if the amount equivalent to ten times the amount of the pecuniary profit from the violation exceeds 50 million won, he/she shall be punished by a fine not less than twice but not more than ten times the amount of the pecuniary profit, and it shall be punished by a fine not exceeding 50 million won.

C. Sub-committee

Thus, although the above facts charged are partially recognized as a defendant's employee's disclosure or use of trade secrets, it constitutes a case where the defendant company cannot be punished because there is no proof of the amount of profit acquired by the defendant company, and thus, it is not guilty in whole under the latter part of Article 32

On the ground of sentencing, the trade secrets leaked by Defendant A are important business assets of the victimized company that made the victimized company into a long-term cost and effort. Since the Defendant’s act of divulging this without permission is at the risk of being leaked to the rash control program developed by the public, the Defendant’s crime is not less severe, and thus the corresponding punishment is needed.

However, even if the source code files among the program files leaked by the defendant were used partially for the equipment program of the corporation C, the fact that the technology producing equipment in the victim company and the major technical idea of the program driving this equipment was used in the above C does not have any evidence, and in light of the fact that the defendant contributed to the development in the course of performing his/her duties, it is difficult to sentence the defendant without any punishment.

In full view of these points and other general reasons for sentencing of the defendant, the sentence of suspension of the execution of imprisonment shall be determined as the sentence of the defendant.

Parts of innocence

1. Defendant A

The facts charged against Defendant A include the following: (a) the above Defendant acquired and divulged trade secrets against U files on Nos. 84; and (b) the use of trade secrets against U files on Nos. 62 through 66, 70 through 75, 84 files.

However, as seen in the judgment of Defendant A, the above acquisition, leakage and use parts constitute a case where there is no proof of crime.

Therefore, inasmuch as not guilty should be pronounced pursuant to the latter part of Article 325 of the Criminal Procedure Act, but inasmuch as it is found that the crime of acquisition, leakage, and use of the remaining files in the relation of a single comprehensive crime (see, e.g., Supreme Court Decision 2006Do902, Apr. 9, 2009) is guilty, a separate sentence shall not be

2. Defendant B

As seen in the judgment on Defendant B, since the entire facts charged against the above Defendant constitute a case where there is no proof of crime, the judgment of innocence is rendered in the text.

3. Defendant C

As seen in the part of judgment as to Defendant C, the entire facts charged against the above Defendant constitutes a case where there is no proof of crime, and thus, the judgment of innocence is rendered.

Judges Park Jong-he