[1] In the absence of a specific contract for prohibition of transfer, whether the application for prohibition of transfer under Article 10(1) of the Unfair Competition Prevention and Trade Secret Protection Act has been filed (affirmative)

[2] The meaning of trade secrets under Article 2 subparagraph 2 of the Unfair Competition Prevention and Trade Secret Protection Act and the circumstances to be considered when determining whether the trade secret requirements are met and whether the trade secret is specific

[3] The period of trade secret infringement prohibition and the starting point of the period of trade secret prohibition

[1] In a case where it is recognized that a worker cannot protect the company's trade secrets unless the worker is prohibited from engaging in a business related to the trade secrets in the former company, even if there is no specific contract prohibiting the transfer of trade secrets, one of the measures necessary to prohibit or prevent the act of infringement under Article 10 (1) of the Unfair Competition Prevention and Trade Secret Protection Act and to prohibit the worker from engaging in a business related to the trade secrets in the former company.

[2] The term "trade secret" under Article 2 subparagraph 2 of the Unfair Competition Prevention and Trade Secret Protection Act means any production method, sale method, and other technical or managerial information useful for business activities, which are not known to the public, and kept secret by considerable effort. In order to issue an order to prohibit infringement of trade secret, the trade secret should be specified. However, if an employer seeks to prohibit infringement of trade secret against a worker engaged in the same or similar business as the previous business after changing his/her technical ability and know-how to a competitor, it should be determined whether the trade secret claimed by the employer satisfies the requirements as a trade secret, and whether the trade secret is specified as a trade secret, as well as the contents of the trade secret itself claimed by the employer.

[3] In the event that an employee does not retire from a company but is likely to infringe on trade secrets due to the preparation for the change of occupation, etc., and an employee seeks a precautionary measure to prevent infringement of trade secrets and prohibition of transfer, the period of prohibition of trade secrets and the period of prohibition of transfer may be calculated on the basis of the time of secession from the work actually handled by the company even if the employee did not retire from the company. However, in the event that the employee files an application for prohibition of transfer after retirement from the company, the prohibition of transfer is basically limited to the employment of the employee in competition with the employer. Thus, unless there are special circumstances to deem that the employee could have filed an application for prohibition of transfer before retirement from the company, it shall be calculated on the basis of the time of retirement of the employee, unless there is any special circumstance to deem that the employee could have filed

[1] Article 10 of the Unfair Competition Prevention and Trade Secret Protection Act; Article 300 of the Civil Execution Act / [2] Articles 2 subparagraph 2 and 10 of the Unfair Competition Prevention and Trade Secret Protection Act; Article 300 of the Civil Execution Act / [3] Article 10 of the Unfair Competition Prevention and Trade Secret Protection Act; Article 300 of the Civil Execution Act

Samsung Electronic Co., Ltd. (Law Firm Barun, Attorneys Su Jae-du et al., Counsel for the defendant-appellant)

Other party (Law Firm KEL, Attorneys Kim Jae-sung et al., Counsel for the plaintiff-appellant)

Seoul High Court Order 2002Ra313 dated November 12, 2002

The reappeal is dismissed.

1. As to the assertion that an employment prohibition agreement was concluded

Since an agreement on prohibition of competitive business provides that an employer and an employee shall not engage in competitive acts, such as the employment of an employer or the establishment and operation of a competitor, etc., the freedom of occupation is directly restricted, and there is no concern about undermining free competition to the interests of general consumers. In particular, since an agreement on prohibition of transfer to a competitor after retirement is directly related to the livelihood of an employee, it should be determined strictly as to whether there exists an agreement on prohibition of transfer between an employer and an employee.

After finding facts based on the records of this case based on the records of this case, the court below rejected the creditor's application for provisional injunction against transfer on June 1, 200, on the premise that the creditor cannot be deemed to have entered into an agreement with the debtor at the time of withdrawal of the application for provisional injunction against transfer of occupation, which the creditor submitted against the debtor on June 1, 200.

In comparison with the evidence in the records, the fact-finding and judgment of the court below are just and acceptable, and there are no errors in the misapprehension of the legal principles or rules of experience, such as misconception of facts by failing to exhaust all necessary deliberations as to the conclusion of contract prohibiting transfer of occupation, or by failing to exhaust all necessary deliberations.

The judgment cited by the obligee in the grounds of reappeal is different from this case and it is not appropriate to be invoked in this case.

2. As to the application for provisional injunction against transfer under the Unfair Competition Prevention and Trade Secret Protection Act

A person who possesses trade secrets may file a claim with the court for prohibition or prevention of such act against a person who commits or intends to commit an act of infringement on trade secrets under Article 10 (1) of the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter referred to as the "Unfair Competition Prevention Act"), if the business profit is or might be infringed on by such act, and may also file a claim for prohibition or prevention of infringement on trade secrets under Article 10 (2) of the same Act to disuse goods created by the act of infringement, remove facilities provided for the act of infringement, or take other necessary measures to prohibit or prevent the act of infringement. If it is deemed that the company's act of infringement on trade secrets cannot be protected unless the worker prohibits the former company from engaging in the business related to trade secrets, the company's act of infringement on trade secrets shall be prohibited or prevented under Article 10 (1) of the Unfair Competition Prevention and Trade Secret Protection Act and shall take measures to prohibit the former company from engaging in the business related to the trade secrets.

In this case where the existence of a specific contract prohibiting the transfer of occupation is not recognized between the parties, the lower court, in principle, determined that the application for the prohibition of the transfer of occupation against the debtor could not seek the prohibition of the transfer, based on the provision of Article 10 of the Unfair Competition Prevention Act.

In the facts acknowledged by the court below, it is difficult to conclude that the obligee cannot prevent infringement of the obligee's trade secret without prohibiting the transfer of the obligee's trade secret. Such determination by the court below is just, and there is no error of law by misapprehending the legal principles on the

3. As to the period of prohibition of infringement of trade secrets and the starting point of calculation

The trade secret under Article 2 subparagraph 2 of the Unfair Competition Prevention Act refers to the production method, sale method, and other technical or managerial information useful for business activities, which is kept confidential by considerable effort. In order to order the prohibition of infringement of trade secret, the trade secret should be specified. However, in order to order the prohibition of infringement of trade secret, if the trade secret is claimed against the worker engaged in the same or similar business as the previous one with considerable technical ability and know-how and know-how and is transferred to a competitor, the trade secret claimed by the employer as a trade secret satisfies the requirements of the trade secret and is specified as the trade secret, not only shall the trade secret itself claimed by the employer but also its working period, work period, position, possibility of access to the trade secret, contents and nature of the work assigned by the previous company, the relationship between the employer and the former company should be comprehensively considered.

Meanwhile, the scope of time to be protected under the Unfair Competition Prevention Act should be limited to the time limit necessary to ensure fair and free competition by preventing the infringing person from taking advantage of more favorable sources and time saving, than fair competitors by the infringement. The scope should be determined by reasonably taking into account the content of the trade secret information, the period and expenses required to obtain the information by the holder of the trade secret, the effort and method to maintain the trade secret, the time necessary for the infringing person or other fair competitors to obtain the technical information in a lawful manner, such as independent development or reverse design, in relation to the period of service, work or position in charge, access to the trade secret, the degree of access to the trade secret, the freedom of livelihood and occupation selection of the former employee, the freedom of business activities and occupation selection, and other personal and material facilities of the parties indicated in other examinations (see Supreme Court Decision 97Da24528, Feb. 13, 1998).

In addition, in imposing a duty to refrain from infringement of trade secrets, it shall be assessed on the basis of trade secrets acquired by an employee who handles trade secrets, and the duration of trade secrets shall be assessed on the basis of trade secrets. Since Article 10 of the Unfair Competition Prevention Act provides that an employee may take measures to prohibit or prevent infringement of trade secrets, if an employee seeks a precautionary measure to prevent infringement of trade secrets as a result of his/her failure to retire from the company but being preparing for the change of his/her position, etc., then the period of prohibition of infringement of trade secrets can be calculated on the basis of the time when the employee actually left from the business in which the employee handled the trade secrets and can seek a prohibition of infringement of trade secrets during the remaining period of his/her trade secrets. Thus, even if an employee seeks a prohibition of infringement of trade secrets after his/her retirement, it shall be reasonable

The court below acknowledged facts as indicated in its reasoning based on the records of this case, and found it reasonable to view that the period of prohibition of infringement of trade secrets against the debtor requested by the creditor company to prevent infringement of trade secrets of this case is from March 29, 200 to March 28, 2001, when the debtor left the research and development business of this case for 1 year from March 29, 200, when the debtor retired and transferred, the court below rejected the creditor's application for prohibition of infringement of trade secrets since the period expired since September 1, 201, when the debtor retired and transferred.

In factual relations acknowledged by the court below, the judgment of the court below on the premise of the above legal principles is just, and there is no unlawful ground for misunderstanding the legal principles on the period of prohibition of infringement of trade secrets and the recognition of the starting point

4. As to the period of prohibition of change of occupation and the starting point thereof

Based on the records of this case, the court below acknowledged facts as indicated in its holding, and recognized that the period of the transfer prohibition against the debtor is one year from March 29, 2000, when the debtor deserts from the business of handling trade secrets, such as the period of the prohibition against infringement of trade secrets.

The imposition of the duty to prohibit the transfer of a retired worker is for the protection of trade secrets in the previous workplace where the employee had been on duty. Thus, barring any special circumstance, the transfer cannot be prohibited for the period exceeding the term of trade secrets. As seen earlier, as long as the period of protection of trade secrets in the creditor company in this case is recognized as one year, the period of prohibition against the transfer of trade secrets in the creditor company should be determined as one year. Thus, the judgment of the court below is just, and there is no error of law

Meanwhile, in light of the provisions of Article 10 of the Unfair Competition Prevention Act, in a case where a worker seeks a precautionary measure to prevent a violation of trade secrets due to a worker's failure to retire in the company, but the preparation for the change of occupation is likely to violate the trade secrets, even if the worker did not retire in the company, the period of prohibition of the change of occupation can be calculated on the basis of the time of secession from the business actually handled by the company. However, in a case where the worker files an application for prohibition of the change of occupation after retirement in the company, the prohibition of the change of occupation is basically limited to the employment of the worker in competition with the employer. Thus, unless it is acknowledged that the employer could have applied for the prohibition of the change of occupation after the worker moves to the department that does not deal with trade secrets, it is reasonable to calculate the period of prohibition of the change of occupation as of the time of

Based on its stated facts, the lower court determined that the starting point of the period of prohibition of transfer to the debtor was March 29, 200, when the debtor was practically relieved from the business of handling trade secrets, such as the starting point of the period of prohibition of transfer to the debtor.

Unless there are special circumstances to deem that a creditor company could file an application for the prohibition of transfer to a debtor before the debtor retires from the creditor company, the starting point of the period of prohibition of transfer to the debtor should be based on the time of the debtor's retirement from the creditor company. In this case, without holding any special circumstances, it is erroneous to recognize March 29, 200 as the starting point of the period of prohibition of transfer to the debtor, which is the time when the debtor left the business of the debtor, rather than the date of retirement, rather than the date of retirement of the debtor.

However, in the factual relations of this case where it is not reasonable to determine the duration of the protection of trade secrets for one year from March 29, 200, and there are no opposing reasons, it shall not be protected as trade secrets any longer asserted by the creditor company after the lapse of the time the debtor actually retires from the creditor company. Therefore, if the debtor retires at the time of retirement, it is no longer necessary to prohibit the transfer of the debtor to protect the creditor company's trade secrets, and as a result, it is impossible to accept an application for prohibition of transfer of the creditor company. Thus, the court below's dismissal of the application for prohibition of transfer of company by the creditor company even if there are different reasons, is justified in its conclusion, and the above errors are not unlawful that affected the

The cases cited by the Re-Appellants in the grounds of re-appeal are inappropriate to be invoked in the instant case, unlike the instant case.

5. Conclusion

Therefore, we accept all of the arguments in the grounds for reappeal and the grounds for reappeal, and dismiss the creditor's reappeal. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)