2013 Highest 5293 Violation of the Unfair Competition Prevention and Trade Secret Protection Act (Business)

Secrets, occupational breach of trust

A

Chuncheon (prosecutions) and Lee In-ju (Public Trial)

Law Firm B, Attorney C, D

December 17, 2013

A defendant shall be punished by imprisonment for not less than eight months.

Seized evidence 2 to 5 each shall be confiscated.

Criminal History Office

The Defendant, from October 1, 2004 to April 30, 2012, as the head of the headquarters in the field of study consulting in Gangnam-gu as the victim F (hereinafter referred to as "victim") located in Gangnam-gu Seoul, for the head of the headquarters in the field of study consulting in the field of study. Around May 1, 2012, the Defendant established H in the fiveth floor of Seocho-gu Seoul Metropolitan Government Building and operates a study consulting company in the name of the International Institute of Research.

After the Defendant retired from the victimized enterprise, the Defendant was willing to acquire and use customer information DB data, including the name, telephone number, mobile phone number, e-mail address, mail number, address, school name, school year, parents' address, parents' cell phone number, parents' cell phone number, parents' e-mail address, etc.

1. Violation of the Unfair Competition Prevention and Trade Secret Protection Act (Disclosure of Business Secrets, etc.); JDB.xlsx files and yarns;

피고인은 2012. 5. 8.경 | 유학원 사무실에서, 피해업체 정보관리책임자로 근무하다 2011. 7.경 피해업체에서 퇴직한 K에게 "피해업체의 고객정보 DB자료를 갖고 있으면 보내 달라"라고 부탁하여 K으로부터 피해업체의 고객정보 자료 중 10,687명 학생의 이름, 전화번호, 휴대폰 번호, 이메일 주소, 우편번호, 주소, 학교명, 학년, 학부모 주소, 학부모 전화번호, 학부모 휴대폰 번호, 학부모 이메일 주소가 수록된 'J DB.xlsx 파일을 K의 이메일(L)에서 피고인의 이메일(M)로 전송받는 방법으로 취득하였다.

After that, on May 10, 2012, the Defendant had N, an employee of the victimized enterprise, process the files of JJDB.xlsx in mail and text message from the office of the victimized enterprise to J-Final.xx, and ‘student DATAS-SSx.xlsx', and used them to send promotional materials of the presentation for studying parents' invitation of parents to students and parents through Internet text sending sites and Internet post offices e-posx.

Accordingly, the defendant acquired and used the trade secret data useful to the damaged enterprise for the purpose of obtaining improper profits or causing damage to the damaged enterprise.

2. Occupational breach of trust;

From October 1, 2004 to April 30, 2012, the Defendant works as the head of the headquarters in the field of study consulting service for the victim company as a general manager in charge of study and consulting service, and was well aware that customer information DB, etc. of the victim company is managed as trade secrets and the leakage of the outside is prohibited. At the time of withdrawal, the Defendant was responsible for the occupational duty to prevent leakage of the damaged company to the outside, such as returning or destroying the data kept or prepared by the defendant to the company. The Defendant was also responsible for the duty to keep the damaged company from divulging the secret pledge, such as not discharging the damaged company's data under his/her control.

Nevertheless, on April 30, 2012, the Defendant retired from the damaged enterprise on April 30, 2012, and did not return or discard reference materials related to study consulting, which the Defendant developed or prepared at the time of the victimized enterprise, to the victimized enterprise, and stored them in the external storage device owned by the Defendant, and acquired JB.xlxx files from K, which is the trade secret of the victimized enterprise, from the victimized enterprise, and then used them to make a J-Finx.xlsx, a student DDA-SS.xlx file, a student's staff member N, and then used them to make a student's files, and around May 14, 2012, J-Finx2, a business asset of the victimized enterprise, a student's major business asset, a student's DNA-Mx 2, a student's DNA-Mx 9, a student's 2,010-Mx1, an annual 2,010-Mx16.

Accordingly, the defendant, in collusion with N, acquired financial benefits equivalent to the market exchange price in the amount of money invested in the accumulation of data such as customer information DB for about six years, and at the same time suffered financial damage equivalent to the same amount from the damaged enterprise.

Summary of Evidence

1. Partial statement of the defendant;

1. Each legal statement of witnessO and P;

1. A protocol concerning the examination of suspect by the prosecution of K, N, and Q;

1. The statement of R in each police interrogation protocol to Q, N, or K, and in the police interrogation protocol to K;

1. Statement of each police statement against K and S;

1. A written statement or written confirmation of theO;

1. Each protocol of seizure and the list of seizure;

1. An investigation report (to hear and report an O telephone statement from the chief of the J business administration department);

1. The security manual, business registration certificate, mail sent from parents, mail sent to parents, F security management explanatory materials, each confidentiality pledge, each leaked data (Evidence No. 17,18), employment contract, each ethical pledge, each employment contract, leaflet, and e-mail output data among the seized articles, the list of e-mail files in the seized articles CD, the list of suspect Q e-mail reception files, the list of files, the list of files, the list of e-mail received, the contents of the I seminars, A.T.U. records, and e-mail records;

Application of Statutes

1. Article applicable to criminal facts;

Article 18(1) of the Unfair Competition Prevention and Trade Secret Protection Act, Articles 356, 355(2), and 30 of the Criminal Act

1. Commercial competition;

Articles 40 and 50 of the Criminal Act

1. Selection of punishment;

Each Imprisonment Selection

1. Aggravation for concurrent crimes;

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

1. Confiscation;

Article 48(1) of the Criminal Act

Reasons for sentencing

○ Scope of Recommendations: one year to three years.

- Class 1 (Violation of Trade Secrets, Domestic Infringement); one to three years (Aggravated: planned crimes)

-two crimes (occupational breach of trust), four months to one year (basic area);

-aggravating multiple offenses (the first offence maximum + the second offence maximum 1/2);

○ The Defendant appears to have committed the instant crime, such as acquiring the instant information before his retirement from office and holding a presentation session on studying abroad, etc. It appears that the instant crime was extremely planned after his retirement. During that process, N and Q still engaged in a new business activity of the Defendant, JDB.x files are comprised of information up to July 201, and even if the information is not recorded until May 201, which is the time of the crime, from that time, it cannot be deemed that the victim suffers from the outflow when considering the value and quantity of the information recorded in the instant file, and the remaining information cannot be said to have little property value when considering the current status and availability of the information, and the type of the damaged business. Considering that the Defendant’s efforts to improve the value and importance of the use of the instant information, which is the best possible value and importance of the information than those of the Plaintiff at the time of the instant crime, it cannot be determined by taking into account the Defendant’s ability to use the instant information as a director and efforts to use it for the same type of business.

Not guilty portion [annual student information list (06-neest.xls), school support and passing status of 201 [Fall 2012] school support and passing status, xls + student + ＋.xlsx), 'Fall 209-2012 Bonding inflsx file acquisition, respectively, in violation of the Unfair Competition Prevention and Trade Secret Protection Act and Trade Secret Protection Act (business secrets, etc.).

1. Summary of the facts charged

On May 5, 2012, 14. 09:39, the Defendant acquired, on May 31, 2012, “the student information list (06-N.xs)” and “2011 (Fall 2012) school support and passing status.xls” by means of e-mail transmission from N around 10:30 on May 14, 2012, the Defendant acquired, on May 31, 2012, “the passing period, the trade secret of the victimized enterprise + the student + the student + the fixed.xlx)” as the trade secret of the victimized enterprise by means of e-mail transmission from N around 11:40 on May 31, 2012.

Accordingly, the defendant acquired the above data, which is a trade secret useful to the damaged enterprise, in order to obtain improper profits or to inflict damage on the damaged enterprise.

2. Determination

In full view of all the evidence submitted in the instant case, it is insufficient to recognize that the information recorded in each file or file was managed as a trade secret. Rather, even if based on the witnessO or P’s statement at each court, the information recorded in the said file is recognized as having not been maintained and managed as confidential because employees could easily access the information through their personal computer or not classified and notified as a trade secret. Thus, it is difficult to deem that each file constitutes a trade secret.

3. Conclusion

Thus, this part of the facts charged should be pronounced not guilty under the latter part of Article 325 of the Criminal Procedure Act because it constitutes a case where there is no proof of a crime. However, as long as it is found guilty of a crime of occupational breach of trust in the judgment which has a relationship of commercial concurrence,

Judges Lee Sung-sung