Defendant 1 and one other

Both parties

Freeboards

Law Firm Han-soo et al., Counsel for the defendant-appellant in charge of the Pacific affairs

Suwon District Court Decision 2007Gohap188 Decided May 23, 2008

The judgment of the court below is reversed.

Defendants shall be punished by imprisonment for three years and six months, and fine for 3,000,000,000 won.

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 each of the 10,000,000 won into one day.

The number of detention days prior to the pronouncement of the judgment below shall be 171 days to be included in the above imprisonment for the Defendants.

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

1. Summary of grounds for appeal;

A. Defendants

(1) misunderstanding of facts or misapprehension of legal principles

(A) Defendant 1 (this case’s crime No. 2 in the judgment of the court below)

Defendant 1 did not obtain unjust profits at the time of receiving this part of the drawings, and it cannot be deemed that Defendant 1 obtained the said drawings only by using the said drawings to a computer used for business purposes by the Company.

(B) Defendant 2

① Defendant 1’s receipt of this part of the drawings on the computers used by the company for business purposes cannot be deemed as having obtained the above drawings, which are trade secrets. Even if not, Defendant 1 deleted them thereafter, and thus, it is merely an attempted discontinuance (related to the crime of Paragraph 2 of the original judgment).

② The lower court’s holding that the crime of occupational breach of trust and the crime of violation of the Unfair Competition Prevention and Trade Secret Protection Act due to the divulgence of trade secrets from abroad are in a mutually competitive relationship between the crime of occupational breach of trust and the crime of violation of the Unfair Competition Prevention and Trade Secret Protection Act, while choosing imprisonment for each crime of occupational breach of trust and imposing a fine which is provided for in the crime of violation of the Unfair Competition Prevention and Trade Secret Protection Act due to the divulgence of trade

(3) The court below imposed a fine on which the amount of the amount of the profit from property should be determined although it is impossible to calculate the pecuniary profit, and the basis for calculating the amount of the fine is unclear.

(2) Unreasonable sentencing (defendants)

In light of the overall circumstances of the instant case, the sentence of KRW 5,00,000, which was sentenced by the lower court, is too unreasonable, because of the following: three years and six months of imprisonment imposed by the Defendants; and

(b) An inspection;

In light of all the circumstances of this case, each of the above types of punishment sentenced by the court below to the defendants is too uneasible and unfair.

2. Determination

A. Judgment on misconception of facts or misapprehension of legal principles

(1) (A) In light of the following circumstances acknowledged by the evidence duly adopted and investigated by the lower court, i.e., ① Defendant 2’s request from Nonindicted 2 to the effect that “Thypine e-mail” and “Ne-mail e-mail e-mail e-mail e-mail e-mail e-mail was sent to Defendant 1 at that time; ② Defendant 2’s request was made from Nonindicted 2 to Defendant 1; ② Defendant 2’s e-mail e-mail e-mail e-mail e-mail e-mail e-mail e-mail e-mail e-mail e-mail e-mail e-mail e-mail e-mail e-mail e-mail e-mail e-mail e-mail e-mail e-mail e-mail (M/T e-mail e-mail e-mail e-mail e-mail e-mail e-mail.”

(B) The acquisition of trade secrets under Article 18(2) of the former Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 8767 of Dec. 21, 2007; hereinafter the same applies) refers to a case in which trade secrets are created by social norms as one's own and can be used. As seen in the above paragraph(a) of the same Article, Defendant 1 connects the Hyundai Motor Vehicle Network (SSWD) drawings and electronic delivery system to the Lao (SWD) system by using Ad (ID) and a flick (flick) system, which is a trade secret, to the extent that he received various chapterss, the Defendants, a joint principal offender, obtained trade secrets by transferring them into his control area and using them as one's own, and thus, Defendant 1 cannot be seen as having attempted to commit a crime after the deletion of the above part.

(2) In a case where a single act stipulated in Article 40 of the Criminal Act constitutes several crimes, the purport that the punishment provided for in Article 40 of the Criminal Act shall be imposed pursuant to the provisions of the Act that provides for the most severe punishment among the names of the said several crimes, and that the punishment cannot be imposed less than the lowest punishment provided for in other Acts, namely, that the punishment shall be imposed within the scope of the lesser severe punishment (see, e.g., Supreme Court Decision 2005Do8704, Jan. 27, 2006). Such a legal principle applies not only to the principal punishment but also to the concurrent punishment or the additional punishment, and it does not change from the arbitrary concurrent punishment, not to the necessary concurrent punishment.

Therefore, while the court below selected the imprisonment for the crime of occupational breach of trust and the crime of violation of the Unfair Competition Prevention and Trade Secret Protection Act due to the divulgence of trade secrets from abroad, it cannot be said that there was an error of law by misunderstanding the legal principles as to the commercial concurrence and the choice of punishment as pointed out by Defendant 2, as it points out in the concurrent measures of fines under Article 18(4) of the former Unfair Competition Prevention and Trade Secret Protection Act. Thus, this part of the defendant 2's assertion is without merit.

(3) The lower court determined that the Defendants’ act of this case committed by the Defendants was unable to calculate the amount of pecuniary profits acquired by the Gangwon-do LLC, and recognized that the amount of pecuniary profits acquired by the Defendants from the crime of violation of the Unfair Competition Prevention and Trade Secret Protection Act due to the divulgence of trade secrets abroad is equivalent to US$ 1-A-related to the crime of this case, US$ 2 million, and US$ 1-B-related to the crime of this case as indicated in the lower judgment, and imposed a fine through the aggravation of concurrent crimes. The lower court’s assertion on this part is without merit that the grounds for calculating the amount of fine are unclear.

B. Determination on the assertion of unfair sentencing

Defendant 2 is in charge of Hyundai Motor Vehicle Head Office case (KD) business team China. Defendant 1, while working for the head office of Hyundai Motor Vehicle Purchase General Headquarters, the head office overseas domesticization support team director, has deducted trade secrets, which are valuable assets of the victim company for their interests, and received approximately KRW 2,400,000 in return for the deduction of trade secrets, which are valuable assets of the victim company for their interests, and is in a long-term employment relationship with the victim company, there is a high possibility of criticism by significantly exceeding the duty of good faith and care to the victim company. In addition, trade secrets provided by the defendants are the core technologies of the automobile industry, such as automatic transmission technology, etc., the automatic transmission technology, which is the core technology of the automobile industry, inputs enormous costs and human resources, and the possibility of directly applying to the production can not be ruled out. Above all, since trade secrets were leaked to a foreign vehicle company in competition with our country, it may cause serious harm not only to the victim company, but also to the national economy.

However, Defendant 1 is an initial offender, and there is no previous conviction other than a fine once, Defendant 2 deposited KRW 10,100,000 to the victim company. The profits actually earned from the crime of this case by the Defendants are about KRW 942,940,00 (the total amount of about KRW 752,940,000 related to automatic transmission machines, approximately KRW 19,000,000 related to global usage) and approximately 1,503,013,939 ( around KRW 1,313,013,939 related to automatic transmission, and KRW 19,000,000 related to UN, and the Defendants did not appear to have any capacity to pay the victim a fine and KRW 5,00,000,00,000 as a result of the crime of this case, and the lower court did not appear to have any reason to recognize the Defendants’ respective grounds for imposing unfair sentencing after considering the following circumstances.

3. Conclusion

Therefore, since the defendants' appeal is well-grounded, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and it is again decided as follows.

Since the facts charged by this court against the Defendants and the summary of the evidence are the same as the corresponding column of the judgment of the court below, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

1. Article applicable to criminal facts;

Articles 356, 355(2), and 30 (Occupational Breach of Trust) of the Criminal Act; Articles 18(1) of the former Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 8767 of Dec. 21, 2007; hereinafter the same shall apply); Article 30 of the Criminal Act; Article 18(2) of the former Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 8767 of Dec. 21, 2007); Article 18(2) of the former Unfair Competition Prevention and Trade Secret Protection Act; Article 30 (including acquisition of trade

1. Commercial concurrence and the selection of a punishment;

Articles 40 and 50 of the Criminal Code: The crimes of violation of the Unfair Competition Prevention and Trade Secret Protection Act and the crimes of occupational breach of trust due to the divulgence of trade secrets outside the country.

Imprisonment with prison labor for each crime of occupational breach of trust shall be selected, and a fine for a violation of the Unfair Competition Prevention and Trade Secret Protection Act due to the divulgence of trade secrets abroad shall be imposed concurrently pursuant to Article 18(4) of the former Unfair Competition Prevention and Trade Secret Protection Act. The decision of imprisonment with prison labor for a violation of the Unfair Competition Prevention and Trade Secret Protection Act

1. Aggravation for concurrent crimes;

Articles 37 (former part), 38 (1) 2 and 3, and 50 of the Criminal Act [the imprisonment between the crimes of occupational breach of trust and the crimes of violation of the Unfair Competition Prevention and Trade Secret Protection Act due to the acquisition of trade secrets shall be sentenced to the imprisonment with prison labor with prison labor as prescribed for the crimes of occupational breach of trust due to the divulgence of trade secrets related to the motor vehicle of the most severe punishment and criminal penalty, and the fine shall be sentenced to the imprisonment with prison labor as for the crimes of occupational breach of trust due to the violation of the Unfair Competition Prevention and Trade Secret Protection Act due to the divulgence of trade secrets related to the motor vehicle of the largest 4 speed automatic transmission period, and both punishment and fine shall be imposed concurrently for the crimes of concurrent crimes (limited to the total amount of fine)]

1. Discretionary mitigation;

Articles 53 and 55 (1) 3 of the Criminal Code

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Code

1. Inclusion of days of detention in detention;

Article 57 of the Criminal Code

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

It is so decided as per Disposition for the above reasons.

Judges Yoon Jae-ap (Presiding Judge) (Presiding Judge)