Defendant 1 and two others

Both parties

Kim Ho-ho, fixed-type (prosecutions), stuffed completion, Kim Jin-ho (Trial)

LLC, Kim & Lee LLC, Attorneys Seo-soo et al.

1. Seoul Southern District Court Decision 2012Da3736 decided June 11, 2014; / 2. Seoul Southern District Court Decision 2011 High Court Decision 2799 decided September 2, 2014

The prosecutor and the Defendants’ appeal against the first instance judgment are all dismissed.

The second original judgment shall be reversed.

Defendant 1 shall be punished by a fine of KRW 3,000,000, by a fine of KRW 5,000,000, by a fine of KRW 3,000, and by a fine of KRW 3,000, respectively.

In the event that the Defendants did not pay the above fine, the Defendants shall be confined in the Labor House for the period calculated by converting the amount of KRW 50,000 per day into one day.

Seized evidence Nos. 1 and 2 shall be forfeited from Defendant 2.

To order the Defendants to pay an amount equivalent to the above fine.

The defendant is not guilty of violation of the Computer Program Protection Act due to the acquisition of reproduction of the program made by infringing the program copyright.

1. Summary of grounds for appeal;

A. Defendants

1) misunderstanding of facts and misapprehension of legal principles

A) Occupational Breach of Trust (First Instance)

(1) The program-related materials that the Defendants were in custody at the time of withdrawal from the victim Nonindicted Co. 3 (hereinafter “victim Co. 3”) are entirely different from the program registered with the Copyright Committee, and were owned by Nonindicted Co. 1 (hereinafter “Nonindicted Co. 1”) and did not take any measures such as the indication of secrets or restriction on access inside the victim Co., Ltd., and thus, they do not constitute trade secrets or important business assets of the victim Co. 3.

(2) The Defendants did not separately copy the above program materials while leaving the victim company, but did not hold them as they were. After the program was developed in accordance with the contract with the ordering office, the Defendants did not feel the need to return them to the victim company. After the contract with the ordering office was terminated, the victim company did not request the employees to return the program stored in the private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private private law

(3) Although the Defendants continued to keep the ERP program, which was held at the time of withdrawal of the victim company, on an individual computer, the Defendants’ program was entirely separate from the program of the accounting management section kept by the Defendants, and the ERP program, other than the accounting management section, was not newly developed or operated by using the existing program after the Defendants’ entry of Nonindicted Company 2. Thus, the Defendants cannot be deemed to have developed the ERP program using the victim company’s program.

(4) The Defendants were in custody of the programs stored in a personal computer at the time of the withdrawal from the victim company, and did not have developed the ERP program for Nonindicted Company 2. Thus, the Defendants’ act cannot be deemed to have caused property damage to the victim company and acquired financial benefits.

(5) Nevertheless, the first instance court found the Defendant guilty of this part of the facts charged. In so determining, the lower court erred by misapprehending the legal principles and misconception of facts.

B) Violation of the Computer Program Protection Act (No. 2)

(1) Regarding the employer manual

Of this part of the facts charged, user manual data is not a computer program prescribed by the former Computer Program Protection Act (Act No. 9625 of Apr. 22, 2009, which was repealed on July 23, 2009), and it is not a program copyright infringement even if it was revised under the following.

(2) As to the ○○○○ program

The victim’s ○○○○○○ program registered with the Copyright Committee and ERP program supplied by the victim company to Nonindicted Company 1 in 2006 is without identity. The ERP program that supplied to Nonindicted Company 1 belongs to Nonindicted Company 1 and its copyright belongs to Nonindicted Company 1 or its previous ordering office. The Defendants did not make ERP program by reproducing, modifying, and modifying the above ERP program, and the Defendants did not use only the portion of the accounting management in the ERP program of Nonindicted Company 2 that was seized at the investigation stage, and the remainder was not actually used by Nonindicted Company 2. In addition, the Defendants are those who developed the ERP program of Nonindicted Company 2, and do not constitute “the act of using the reproduction of the program that was made by infringing the program copyright” as provided by Article 29(4)2 of the Computer Program Protection Act.

Nevertheless, the second instance court found the defendant guilty of this part of the facts charged, and the judgment of the court below is erroneous in misconception of facts and misapprehension of legal principles.

2) Unreasonable sentencing

The punishment sentenced by each court below (Defendant 1: 6 months of imprisonment, 2 years of suspended sentence, 5 million won of fine, 6 months of imprisonment, 7 million won of fine, 6 months of fine, 6 months of imprisonment, 6 months of suspended execution, 2 years of suspended execution, 5 million won of fine) is too unreasonable.

(b) Prosecutors;

The sentence sentenced by the first instance court is too unhued and unfair.

2. Judgment on the grounds for appeal against the first instance court (the part of occupational breach of trust);

A. Judgment on the misunderstanding of facts and misapprehension of legal principles by the Defendants

1) Relevant legal principles

The crime of occupational breach of trust is established when a person who administers another’s business obtains pecuniary advantage or has a third party obtain such pecuniary advantage through an act in violation of one’s duty and thereby causes loss to the principal. Here, “act in violation of one’s duty” refers to any act in violation of a fiduciary relationship with the principal by failing to perform an act that is naturally expected under the provisions of law, the terms of a contract, or the good faith principle, or by performing an act that is naturally expected not to perform an act (see, e.g., Supreme Court Decision 98Do4704, Mar. 12, 199). “When an act in violation of one’s duty” includes not only cases where a real loss was inflicted but also cases where a risk of actual damage to property has been inflicted (see Supreme Court Decision 2003Do4382, Oct. 30, 2003).

If an employee of a company divulges a trade secret to a competitor or ships it out without permission for the purpose of using it for his own interest, the act of taking it out constitutes an occupational breach of trust, and even if it is not disclosed to many unspecified persons even if it is not a trade secret, and is a major business asset produced by an employer using considerable time, effort and expenses, the act of taking it out constitutes an occupational breach of trust. Even if an employee of the company lawfully takes out trade secret or material which is a major business asset and does not constitute an occupational breach of trust, if it was leaked to the competitor or did not return it to or discard it for the purpose of using it for his own interest even if it is not a trade secret or material which is an occupational breach of trust (see, e.g., Supreme Court Decision 2006Do9089, Apr. 24, 2008).

2) Determination

A) Whether the victim company's ERP program and the user manual constitutes a trade secret or an important business asset of the victim company

(1) According to the Unfair Competition Prevention and Trade Secret Protection Act, the term “trade secret” means any production method, sale method, and other technical or managerial information useful for business activities, which are not known to the public and has independent economic value, and kept secret by considerable effort. Here, the term “confidentially maintained by considerable effort” means a situation where it is possible to recognize the fact that information is maintained and managed objectively as confidential, such as: (a) the production method, sale method, and other technical or managerial information useful for business activities; (b) the information is indicated or notified as confidential; (c) the person who can access the information or the access method; or (d) the person who has access to the information is obliged to keep confidential information (see Supreme Court Decision 2008Da4542, Dec. 23, 2010, etc.

In addition, with respect to whether a company employee is a major business asset, if the material is not disclosed to many and unspecified persons, it cannot be ordinarily obtained without going through a holder, and the holder of the material is a considerable time, effort and expenses for the acquisition or development of the material, and the use of the material led to the extent that the competitor can benefit from competition (see Supreme Court Decision 2010Do3043, Jul. 14, 201, etc.).

(2) In light of the following circumstances: ① the victim company was established for the purpose of developing and selling the computer program in 194 and registered with the Copyright Commission, which is the victims’ resource management system (ERP). After entering into a contract with the victim company, the victim company’s right to use the program for the purpose of protecting the victim’s trade secret was not entered into with the victim company 4, and the victim company’s right to use the program for the purpose of protecting the victim’s trade secret was not entered into with the victim company 5, and the victim company was not entered into with the victim company’s non-indicted 4, 5, 6, 7, and 8, and the victim company’s right to use the program for the purpose of protecting the victim’s trade secret. The victim company’s right to use the program for the purpose of protecting the victim’s trade secret was to develop the program in line with the victim company’s basic development of the software industry and changes in the information environment.

B) Whether there was an intentional act of breach of trust and intent in breach of trust

As seen earlier, the Defendants drafted a security pledge stating that all of the technology and business data for various projects should not be leaked to “outside”. The instant program and the user manual therefor fall under the technical and business data for the projects undertaken by the victim company as major business assets or trade secrets of the victim company. As such, the Defendants are obliged to return or destroy the instant program and the user manual at the time of retirement to the victim company in accordance with the aforementioned security pledge or incidental obligations under the contract.

In addition, the following circumstances acknowledged by the evidence duly adopted and examined by the lower court and the trial court, namely, ① immediately after the withdrawal of the victim company, the Defendants were employed in Nonindicted Company 2 and carried out the business of developing the ERP program in Nonindicted Company 2; ② in the process, the Defendants transferred the program files to their own computers used by Nonindicted Company 2, and used Nonindicted Company 2 to develop the ERP program; and the Defendant prepared the user manual on the ERP program of Nonindicted Company 2 by referring to the user manual of the victim company (as seen in detail in March 3 below), the Defendants did not return or discard the instant program and the user manual for the purpose of developing the ERP program in Nonindicted Company 2 by leaving the victim company (as seen in detail).

As long as the Defendants had the purpose of using the instant program and the user manual for Nonindicted Company 2 under the circumstances that the Defendants had the duty to return or discard the instant program and the user manual, regardless of whether the Defendants actually used the instant program in Nonindicted Company 2, the Defendants’ act of violating the duty to return or discard the instant program and the user manual constitutes an act of breach of trust, and the intent of breach of trust is also acknowledged.

C) Whether property profits have been acquired

As seen earlier, the instant program and the user manual constitute a trade secret or major business asset of the victim company, and so long as the Defendants retired in violation of their occupational duties and did not return or discard it, it is reasonable to deem that they in itself obtained property benefits and suffered property damage to the victim company.

B. Determination on the assertion of unfair sentencing by Defendants and prosecutors

In view of the fact that the Defendants did not have the capacity to punish the Defendants, and that they retired from office without receiving the benefits from the victim company, etc., the circumstances favorable to the Defendants should be taken into account, and the denial of the crime even if the nature of the crime of occupational breach of trust in this case is not good, the Defendants developed the program of Nonindicted Company 2 using the instant program, and the fact that the victim company would have suffered considerable damages due to the instant crime, etc., the sentence imposed by the first instance court is too heavy or too unreasonable.

3. Judgment on the grounds for appeal against the second instance (the part violating the Computer Programs Protection Act); and

A. The scope of this part of the facts charged (related to employers' assertion of manuals)

The Defendants asserted not guilty of violation of the Computer Program Protection Act, which is based on the premise that the user manual is a computer program work, among the facts charged, so this part of the facts charged is examined.

The prosecutor submitted an application for modification of a bill of indictment to the court below on March 18, 2014 and added the part concerning the user’s writing and use of the manual. However, the facts charged in the previous indictment include “the modification of a computer program work” and “the modification of a program program” under Articles 46(1)2 and 29(4)2 of the Computer Program Protection Act, while the applicable provisions of the indictment are not consistent with each other. The facts charged in the above indictment include that “the defendant acquired a revised program and used it for business purposes” under the aforementioned applicable provisions, and the applicable provisions include adding Articles 46(1)1 and 29(1) of the Computer Program Protection Act that correspond to the original facts charged. In light of the purport of the aforementioned application for modification of a bill of indictment, it does not appear that the application for modification of a bill of indictment is the original program in collusion with the defendants, the application for modification of a bill of indictment, and the program to use” under Article 29(4)2 of the Computer Program Protection Act.

Thus, the defendants' assertion on this part is not accepted since the court below did not determine it.

B. Whether the program is modified in violation of the Computer Programs Protection Act

1) Copyright and ownership of the instant program

In full view of the circumstances mentioned in the above 2. A., namely, ① the development and change of the instant program as a computer program, ② the process of modifying the program, ② the victim company agreed to provide a system supply contract with several construction companies with respect to the instant program, while the copyright of the instant program was reserved against the victim company, and the program copyright of the instant program was stipulated in Article 7(2) of the Computer Program Protection Act that “the program copyright arises from the time the program was created and no procedure or form needs to be implemented.” In full view of the aforementioned, it is reasonable to view that the instant program belongs to the victim company as a work of the computer program as prescribed by the Computer Program Protection Act.

2) Whether the Defendants were drafted or not

A) Facts of recognition

(1) Formation of the instant program

The instant program is developed as “web (web)” in the part of construction management, etc. except the accounting management part (hereinafter “construction management part”) and the accounting management part is developed as “C/S method”.

(2) The process of seizure from the Defendants, the program of seizure and the document prepared by the Defendants, the book-keeping and the Defendants

(A) On June 9, 2010, the Seoul Western Police Station searched Nonindicted Company 2’s office, seized Defendant 1’s “209SH” Pool from Defendant 1, and seized Defendant 2’s “existing Source” Pool, Defendant 2’s “P system users manual” from the “Defendant 2” Pool, “newfs,” “Nece,” and “NLP system users manual. In addition, Nonindicted Company 13, the head of the accounting team of Nonindicted Company 2, seized two rights from the computers of Nonindicted Company 13 to the CD.

At the time of seizure, Defendant 2 submitted to the two CDs in the presence of △△ and new system DB, etc., and Nonindicted 13 submitted a document to the effect that he submitted the closure of the ERP system and the source of the CD as a CD 1.

(B) Seized “206SW” refers to the reproduction of the accounting management part of the instant program of the victim company, and “2009SH” means the development of the accounting management system of Nonindicted Company 2 by means of C/S using “2006SW” by Defendant 1.

The seized ‘Nw-Source' includes a web-form construction management part and a web-form accounting management part program.

According to the ERP screen closure and source code confiscated on Nonindicted 13’s computer, the financial management portion (accounting management portion) of Nonindicted Company 2’s ERP program, which was operated on Nonindicted Company 13’s computer, was operated by C/S rather than a web method. The source code of the first screen was used the same as the source code of the program of this case (including “cok value of Nonindicted Company 1’s company”: A = “△△△△△△△△D 1”), the direction of the representative after June 18, 2009, “the date and time of business of materials, such as material, such as enforcement management, construction management, external management, material management, labor management, equipment management, demand for funds management, etc.”

(C) On the other hand, Defendant 2 prepared a written statement of “The progress of the ERP system implementation and introduction” of Nonindicted Company 2 (not more than 102 pages of investigation records). According to the aforementioned written statement, “Implementation progress and future plan (not more than 104 pages)”, the information infrastructure analysis [2), (3), (4), and (7) from January 7, 2009 to January 24, 209 [2] the development of the ERP system in the overseas site after February 209 [5), (6), (7] / [8), / [9] the education for users on June 1, 2009 / [1] the establishment of the ERP system in the overseas site on July 1, 2009 / [2] the victim’s head office to start and output the ERP system on July 1, 2009 / [3] the victim’s head office to start and output it on July 24, 2009 / [19)] the victim’s.

Defendant 2’s written statement that “On-the-spot education and retroactive application plan for past data” (the investigative record No. 1: 126 pages) refers to the documents prepared by Nonindicted Co. 2, including Defendant 2, Defendant 1, and Defendant 3, to educate persons in charge of each part of Nonindicted Co. 2’s company at Libya for the method of using ERP program at Libya site. According to the above written statement, the system environment was established from May 22, 2009 to the 23th day of the same month before educating each part of the construction site of Libya (the preparation for the ERP system and network) and the person in charge of education and test established the ERP program at Libya construction site on July 1, 2009 to provide education to persons in charge of the management of the headquarters from Aug. 12, 2009, and then set up an environment for the management of the software in question.

The phrase “user manual of the overseas ERP system” prepared by the Defendants is produced in the form of a book, and the date of preparation of the screen name “the July 31, 2009” is the same as the content of the user manual provided by the victim company to Nonindicted Co. 10.

However, around January 2009 and May 2009, the Defendants were traveling a business trip at the construction site of Libybya of Nonindicted Co. 2, and Defendant 1 and Defendant 2 were traveling a business trip at the construction site of Libya even around January 2010.

(3) The result of the program appraisal by the Korea Copyright Commission

[Appraisal between the victim company's "206SW (Finance)" and "htp (construction management and other)" as the instant program submitted by the victim company, and between the seized program "209SH" and "neWce"]

(A) Comparison between construction management sections

[Comparison between the part of the instant program [htp” and the part of the construction management [Comparison between the part of the instant program [htp] and the part of the construction management]]

The identity of the table name and file name contained in the main text shall be fully identical [excluding English DNA and new DNA (a,at, po, po, upe, etc.) in the English board] 82.72% of the original non-conformity (in the original non-intersection)

(B) Comparison between accounting management sections.

① Compared between the accounting management part of the instant program [206SW] and the 2009SH] Pool

The identity of the table name and file name contained in the main text shall be fully identical [excluding English DNA, revised DNA (AF), and Visheric action/project file, etc.]; 98% of the original non-conformity map (original non-conformity method)

② Compared between the accounting management section of the instant program [2006SW] and the accounting management section of the “newd”

The accounting management part of the instant program [206SW] is a program developed by C/S format. The accounting management part of the “NSP” is a program developed by the web method. In order to determine similarity between programs developed in different languages, an appraisal is conducted on “the files expressed in the text” among the programs subject to appraisal, and is conducted on the basis of the unit analysis of each function, and whether the program development process is 3) and the main 4) variables, pen name, etc. used to identify similarity of each functional content.

As a result, when taking into account the following circumstances, the accounting management part of 'new-source' did not directly borrow the program code of the fiscal management part of the instant program, but designing the software structure and preparing the software based on the analysis of that code.

First of all, the similarity of file names is more than 80% (the rate at which the Vsssive Bassic name of the instant program is used out of the jp file name from among the fsp file names of the files) and each program is similar in terms of design discussions. Next, as the file names correspond to the indication of the variables and characteristics with respect to the similarity of the variables between similar files and the similarity of the same characteristics, and at least 10 identical variables are found in the same order, the area in which at least 11 of the same variables are recorded are the same, and thus, the “Apparent structure and arrangement method” among each program is similar.

B) Determination

(1) Article 2 Subparag. 4 of the Computer Programs Protection Act provides that “a series of instructions and commands in the original program refers to an act of creating a new program by using the whole or a substantial part of a series of instructions and commands in the original program.”

(2) In full view of the following circumstances revealed through the facts acknowledged above and the evidence duly adopted and examined by the court below and the court below, it is reasonable to view that the Defendants modified the instant program by developing the ERP program for Nonindicted Company 2 (the construction management and accounting management) using the instant program.

① Considering the fact that Defendant 2’s “the progress and introduction of the construction ERP system” and “on-site education and past data retroactive application schedule are very specific; the pertinent document contains the content premised on the fact that the ERP program has already been developed by installing the system environment by preparing the network, and preparing for the ERP software to the trainees, etc.; the Defendants’ schedule for the investigation and education in the above document corresponds to the Defendants’ Libya program’s Libya program; the day of the test screen printed out on May 23, 2009, which can be deemed to have been drafted the above document around that time; in light of the fact that the Defendants left the Republic of Korea on May 23, 2009 and prepared the new method of use for Non-Indicted Party 2’s construction site staff at Libya, Non-Indicted Party 2’s construction site development and management, both of the new construction site and the new construction site.

The Defendants, at the police investigation stage, use the △△, which is the former ERP program, using the △△△, while, from January 2010, the Defendants stated that Nonindicted Company 2 would develop and use the web transfer accounting management system only with respect to the accounting management part. However, the ERP beginning screen and the source code seized by Nonindicted Company 13 was operated and cut down Nonindicted Company 2’s ERP program, and its source code is the same as the source code of the instant program. The Defendants entered Nonindicted Company 2 in order to develop a new ERP program of Nonindicted Company 2, and the employees who were initially employed in the electronic computer room of Nonindicted Company 2 were all dismissed in order of the Defendants’ entry, and according to Defendant 3’s statement, it was difficult to believe that it was difficult to use the former ERP program to believe that the Defendants’ assertion that Nonindicted Company 2 used the △△, the former ERP program.

② Although Nonindicted Co. 2 did not directly appraise Nonindicted Co. 2’s ERP program applied to Nonindicted Co. 2’s construction site on May 209, Defendant 2’s seizure of 2009 Pool from Defendant 2, Defendant 2 was in storage of NAP program separately from 2009 Pool. As seen earlier, Defendants already developed ERP program for Nonindicted Co. 2 on May 2009 and 209 NAP program that was developed on the same part of Nonindicted Co. 2’s headquarters that was developed on Nonindicted Co. 2’s construction site. In light of the fact that Nonindicted Co. 2’s construction site development of Nonindicted Co. 3’s new construction site, as Non-Indicted. 2’s new construction site, it appears that there was no ERP program that was developed on Nonindicted Co. 5’s headquarters and its head office on the same date, the user of the program was not prepared for the convenience of those who use the program after the completion of its ordinary system, and Defendant 2 did not submit an appraisal manual on the construction site.

④ As seen from the appraisal result of the Korea Copyright Commission, the part on construction management of the instant program is considerably similar to the part on the construction management of the instant program, and the part on the accounting management of the Pool is designed based on the analysis of the program code of the accounting management part of the instant program and then prepared the program. In addition, the part on the accounting management of the Pool is similar to the web method which was developed for the victim company before Defendant 1 retires from the victim company, and still remains in the completion of the work. In addition, it is reasonable to view that the alteration of the instant program to build a new ERP program is necessary for more than one year without reference to other program, and it is reasonable to deem that Defendant 2 was capable of developing the instant program at the site of Nonindicted Company 2 at around 20 to 45 months, and that Defendant 20 to implement the instant construction program at around 206 if Defendant 30 was retired from the Defendant Company.

⑤ According to the beginning screen of Nonindicted Co. 2’s ERP program, seized on Nonindicted Co. 13’s computers, Nonindicted Co. 2 appears to have sought a new ERP program at the domestic headquarters as well as at Nonindicted Co. 2’s Libya construction site.

In particular, the accounting management division is employed by the C/S method, which appears to have been based on the “209SH,” which was developed by Defendant 1 by the C/S method for Nonindicted Company 2 (Defendant 1’s police state 6), and thus, the accounting management division of the C/S program used at the headquarters of Nonindicted Company 2 is a program developed using the accounting management part of the instant program.

In addition, the construction management portion among the ERP program used at the non-indicted 2's head office is the same, as seen earlier, and the content of materials such as the publication on the start screen is posted; according to the schedule of the "Promotion and Introduction of the Construction ERP system", according to the schedule of the "Promotion and Introduction of the Construction ERP system", it is applied to the non-indicted 2's head office after the establishment of the ERP program at the construction site in the construction site in the Gu and the old operation after the establishment of the ERP program at the construction site in the construction site in the Gu and the ERP program to the non-indicted 2's head office after the completion of the seizure. As such, it is reasonable to view that the above construction management portion was made using the construction management portion of the instant program in light of the fact that the head office and the overseas construction site in the case of the company resource management program, such as the instant program, appears to have no reason for using any other program.

(c) Whether it falls under Article 29(4)2 of the Computer Programs Protection Act

Article 29(4) of the Computer Program Protection Act provides that “In the case of any of the following matters, the reproduction of a program made by infringing a program copyright shall be deemed to infringe the program copyright” under subparagraph 2 of the same Article, and Article 29(1) of the Computer Program Protection Act provides that “the act of using it for business purposes by a person who acquired it with the knowledge of such circumstances,” in addition to the act of infringing a program copyright by means of reproduction, adaptation, translation, distribution, etc. of a program copyright under Article 29(1) of the Computer Program Protection Act, a person who acquired it with the knowledge of the fact that the reproduction of a program made by infringing a program copyright is deemed to have been an act of using it for business purposes as a part of the program copyright infringement. In light of the content of such legal text, it is reasonable to see that the act subject of Article 29(4)2 of

As seen earlier, the Defendants revised the instant program and thereby committed an infringement on the program copyright under Article 29(1) of the Computer Program Protection Act. As such, the Defendants cannot be deemed to constitute “a person who knowingly acquired the reproduction of a program that was made by infringing the program copyright as the subject of the infringement under Article 29(4)2 of the Computer Program Protection Act, as the subject of the infringement under Article 29(4)2 of the said Act. There is no evidence to acknowledge otherwise.

Therefore, the second judgment of the court below is erroneous by misapprehending the facts and misapprehending the legal principles, and thereby finding the remaining charges guilty.

4. Conclusion

Since the defendants and the prosecutor's appeal against the judgment of the first instance is without merit, it is dismissed under Article 364 (4) of the Criminal Procedure Act. Since the defendants' appeal against the judgment of the second instance is partially reasonable, the second judgment of the second instance is reversed under Article 364 (6) of the Criminal Procedure Act without examining the defendants' assertion of unfair sentencing, and it is so decided as follows.

Defendant 2 served as the vice head in charge of the development of ERP business division in the victim company from September 200 to December 2008. Defendant 1 was a director in charge of the development of ERP program from October 8, 2008 to the victim company from October 2008. Defendant 1 was a director in charge of the development of ERP program from October 28, 200 to December 2008. Defendant 3 was an employee in charge of the operation of ASP program leasing business and the development of ERP business for the purpose of building and managing the network and civil engineering business at the victim company from October 28, 2008 to December 2, 2008.

No one shall infringe another person's program copyright without a legitimate title by means of reproduction, adaptation, translation, distribution, publication and transmission.

Nevertheless, on April 28, 1995, the Defendants drafted the ○○○○○ program created by modifying part of the program for the purpose of producing and supplying the program copyright to Nonindicted Company 1, etc. around 2006, which was developed by the victim company and planned to use the program for Nonindicted Company 2.

As above, the Defendants conspired with each other to leave the victim company, using the aforementioned ○○○○○ file and user manual, which is the computer program work of the victim company. From May 2009, the Defendants developed the above ○○○○○○○○○○○○○○ program for Nonindicted Company 2 and revised the above ○○○○○ program without a legitimate title.

The summary of the evidence of the crime is the same as that of the second judgment of the court below, and it is cited by Article 369 of the Criminal Procedure Act.

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 46(1)1 and 29(1) of the former Computer Programs Protection Act (amended by Act No. 9625, Apr. 22, 2009); Article 30 of the Criminal Act; selection of fines;

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Confiscation (Defendant 2);

Article 48 (1) 1 of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

1. Summary of the facts charged

Defendant 2, Defendant 1, and Defendant 3 conspired with each other to leave the victim company, using ○○○○○○○○ file and user manual data, which are the computer program works of the victim company, and using ○○○○○ program and user manual developed by the victim company, such as using most of the ○○○○ program and user manual from May 2009, and using it as the ERP program and user manual of the non-indicted 2 company, with the knowledge of the circumstances.

2. Determination

As stated in the above 3.C., this part of the facts charged constitutes a case where there is no proof of a crime, and thus, a not-guilty verdict is rendered under the latter part of Article 325

Judges Jeong-hee (Presiding Judge)

1) On March 15, 2006, when entering into an integrated information system with Nonindicted Co. 8, 2006, the victim company agreed to grant only the right to use the system to Nonindicted Co. 8. On July 2007, the victim company entered into an agreement with Nonindicted Co. 10 on the establishment of an integrated information system with Nonindicted Co. 11 to the effect that “the intellectual property right and ownership of all contractual products, such as programs, calculations, etc. developed in the course of the execution of the contract shall belong to Nonindicted Co. 10, but all rights that have not been created in the course of the contract shall be reserved to the original owner,” and on September 10, 2007, entered into an agreement on the establishment of the integrated information system with Nonindicted Co. 12, and concluded with Nonindicted Co. 12 on September 12, 2007, the ownership of the output generated in the course of this service shall be attributed to Nonindicted Co. 12, and intellectual property rights shall be attributed to one owner.

Note 2) In the case of Non-Indicted Party 2’s program introduction map with not more than 5 pages (in the case of the composition of a ceiling system (draft), construction section, contracting and enforcement management, material management, labor management, cost management, funds management, cash management, account section (monthly settlement), and general account system structure (in the case of the foregoing document 17 pages and the bottom of the right), it is identical to the composition and use of the map, and in the case of the standard screen composition (which appears to be 24 pages and the test screen) the content is identical to the victim’s test screen (a right 30 pages of investigation record).

3) In developing the software, the analysis of the subject-matter of development and the structural design of the entire software is prior to the development. To this end, the functional analysis of the subject-matter of development and the design of the specific program preparation unit is intended. Thus, the overall program development process can be generally grasped by analyzing the units of the program divided by function. Complementary appraisal 14 pages

Note 4) The program subject to appraisal is a program that extracts or stores the content of the database in conjunction with the database. As such, the bring structure of the bring structure is bound to be similar to each bringr in the order of simple tampers, such as the tamping/top display/storage of the database, and where each database design is similar, the variables/tamping number, etc. used may be similar. As such, in the tamper program of ERP, “the method of expression structure and arrangement” related to “tebling and forum name, etc.” in the tamper program is an element to determine the originality of the tamper program. The 5 pages and 14 pages of the supplementary appraisal statement are the elements

5) The Defendants asserted that the Defendants were merely aware of the progress of development, and that who group was considered to be the completed program and stored in the server. However, their assertion itself is not acceptable in light of the circumstances where Nonindicted 13’s computer, which is not the ERP development team, confirmed and seized the actual progress during the process of seizure, it is difficult to accept the above assertion.

(6) At the time of the police statement, Defendant 1, who developed “209SH” using the accounting management part of the instant program for the purpose of use in Nonindicted Company 2 at the time of the police statement, stated that the accounting management system was unable to use it in order to proceed to the web method, but, if Nonindicted Company 2 used the C/S method, rather than the web method, he may “209SH” in question.