[1] The specific degree of "trade secret" as stated in the facts charged in a violation of the Unfair Competition Prevention and Trade Secret Protection Act

[2] The meaning and contents of "trade secret" under Article 2 subparagraph 2 of the Unfair Competition Prevention and Trade Secret Protection Act

[3] Where an employee runs a business using technical management information acquired during the employment period after his/her resignation, the elements for such information to constitute a "trade secret" under the Unfair Competition Prevention and Trade Secret Protection Act

[4] In a case where the defendant who retired from Company A was engaged in the business with Company B, a transaction agent of Company A, using information about Company B's supply price and subcontractor acquired while in office, the case holding that the above information does not constitute "trade secret" under the Unfair Competition Prevention and Trade Secret Protection Act

[1] Article 254 (4) of the Criminal Procedure Act, Article 2 subparagraph 2 of the Unfair Competition Prevention and Trade Secret Protection Act / [2] Article 2 subparagraph 2 of the Unfair Competition Prevention and Trade Secret Protection Act / [3] Article 2 subparagraph 2 of the Unfair Competition Prevention and Trade Secret Protection Act / [4] Article 2 subparagraph 2 of the Unfair Competition Prevention and Trade Secret Protection Act

[1] Supreme Court Decision 200Do159 Decided March 10, 200 (Gong2000Sang, 1001) / [2] Supreme Court Decision 2004Do6876 Decided October 27, 2006, Supreme Court Decision 2005Do6223 Decided February 15, 2008 (Gong2008Sang, 425)

Defendant

Defendant

Law Firm Don Law Firm, Attorneys Song Jae-man et al.

Daejeon District Court Decision 2006No1302 Delivered on November 2, 2006

The judgment of the court below is reversed, and the case is remanded to Daejeon District Court Panel Division.

The grounds of appeal are examined.

1. As to the assertion that the facts charged are not specified

The purpose of Article 254(4) of the Criminal Procedure Act, which requires the statement of facts charged in the filing of a public prosecution, is to ensure the efficiency and swiftness of the trial by limiting the object of the trial to the court, and at the same time to facilitate the exercise of the defendant’s right of defense by specifying the scope of defense (see Supreme Court Decision 2005Do9561, Apr. 14, 2006, etc.). Thus, even if the alleged information is not specified in the facts charged in the violation of the Unfair Competition Prevention and Trade Secret Protection Act in question as a trade secret in the case of violating the Unfair Competition Prevention and Trade Secret Protection Act at issue, it can be distinguished from other information, and if it does not interfere with the defendant’s right of defense, the validity of the public prosecution shall not be affected.

이 사건 공소사실에는 피고인이 벨금속공업 주식회사(이하 ‘벨금속’이라 한다)에 근무하면서 취득하게 된 영업비밀에 관하여 “미국 배셋사의 바이어 명단, 납품가격, 아웃소싱 구매가격, 물류비, 가격산정에 관한 제반자료, 벨금속의 중국 하청업자인 존 울리(John woolley), 미스터 종(본명 공소외인)에 대한 자료”(이하 ‘이 사건 정보’라 한다)라고 되어 있다. 이 사건 정보 중 “가격산정에 관한 제반자료”에서의 가격은 다른 공소사실 기재에 비추어 볼 때 배셋사에의 납품가격이나 그 제조원가(하청가격, 물류비 등)를 뜻하는 것으로 보일 뿐, 다른 가격을 의미하는 것으로 보이지는 않는다. 따라서 위 “가격산정에 관한 제반자료”는 그 자체가 독립된 정보를 나타내는 것이 아니라 납품가격, 아웃소싱 구매가격, 물류비에 관한 제반자료를 의미하는 것으로 보이므로 구체적으로 특정되어 있지 않다고 볼 수 없다. 그리고 이 사건 공소사실은 피고인이 벨금속 무역부장으로 근무하면서 취득한 이 사건 정보를 이용하여 중국인 하청업자인 ‘미스터 종’ 등으로부터 손톱깎이 세트 등을 생산하게 한 후 이를 배셋사 등에 납품하였다는 것이므로, 이 사건 정보 중 “벨금속의 중국 하청업자인 존 울리(John woolley), 미스터 종(본명 공소외인)에 대한 자료”는 존 울리나 미스터 종에 관한 인적사항 또는 연락처에 관한 자료 등을 의미하는 것으로 보인다. 따라서 이 사건 공소사실에 기재된 영업비밀 중 “가격산정에 관한 제반자료”나 “벨금속의 중국 하청업자인 존 울리, 미스터 종에 대한 자료”는 다른 정보와 구별될 수 있고, 어떤 내용에 관한 정보인지 알 수 있으며, 특별히 피고인의 방어권 행사에도 지장이 있는 것으로 보이지는 않는다.

Although the court below's explanation of this part of its reasoning is inappropriate, it is just in its conclusion that the facts charged in this case were specified, and there is no violation of law as to the specification of facts charged as alleged in the grounds of appeal.

2. As to the assertion that the trade secret is not trade secret

The term "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 any production method, sale method, and other business activity, which is kept confidential by considerable effort. Here, the term "patently not known" means that the information is not known among persons who are engaged in the same industry and are likely to obtain economic benefits, such as those who are engaged in the same industry, etc., and has independent economic value means the case where the holder of the information can obtain competitive benefits from the other competitor through the use of the information or has considerable expenses or effort for the acquisition or development of the information (see Supreme Court Decision 2005Do623, Feb. 15, 2008, etc.). Accordingly, even if the defendant used the technical or managerial information, etc. acquired during the employment period after his/her retirement, if he/she had not been employed, such information cannot be seen as a trade secret immediately because it was not immediately known to the above information, and it does not constitute an independent trade secret, and it is not widely known by the industry.

The court below acknowledged the following facts based on its adopted evidence, i.e., the name of the American History, a large portion of its list is known to the competitor, but all of its list is not known, and it is difficult to view that the competitor can produce a high quality product at a low cost at the time when entrusting the production of the product to the non-indicted or its subcontractor through the non-indicted or its existence, and it is not known that the production cost of Belgium or the unit price of the exported product is only possible at other companies, but it is only possible to estimate the unit price of the exported product. In determining whether to conclude a contract with Belgium, it is important factor that the difference between the unit price of Belgium's exported product and the approximate price of the Belgium's exported product is not meaningful, and that if it is correct, it is not possible for the defendant to conclude a contract with Belgium by adjusting the price of the product he wishes to supply at a lower price than Belgium's products, and that the defendant's sale of Belgium's product was more likely to have done with Belgium.

However, the above judgment of the court below is hard to accept.

먼저 이 사건 정보 중 “미국 배셋사의 바이어 명단”에 관하여 보건대, 피고인이 벨금속을 퇴직한 후 그 재직 당시 알고 있던 배셋사의 바이어 중 빌(Bill)과 접촉하여 배셋사와 거래를 한 사실은 인정된다. 그러나 기록에 의하면, 배셋사는 바이어를 통하여 국내외 경쟁업체들에게 원하는 제품의 사양과 그림 또는 도면 등을 보낸 다음 납품가격 등을 제시하도록 경쟁을 붙여 적합한 업체를 납품회사로 선정하여 왔으며, 벨금속은 배셋사에 대하여 손톱깎이 등 제품을 독점적으로 공급하는 회사가 아니라 여러 납품업체들 중의 하나이고, 배셋사의 바이어들은 벨금속을 통하여 국내 동종업체를 소개받기도 하였고 소개받은 업체들과 명함을 주고받고 품질에 대한 상담을 한 사실을 알 수 있는바, 그렇다면 배셋사의 바이어 명단은 상당 부분 동종 업계에 알려져 있을 뿐만 아니라, 관련 업체들이 별다른 노력을 하지 않고도 그 명단을 확보할 수 있었을 것으로 보이므로 영업비밀에 해당한다고 볼 수 없다.

Next, with respect to "all data on price calculation, such as price of delivery, price of packing, and logistics expenses," it is recognized that the Defendant supplied Belgium metal to three companies at a price lower than the supply price of Belgium metal supplied to three companies after the Defendant retired from Belgium. However, according to the records, if the Defendant confirms that the supply price offered by other competitors in the course of negotiations with the supplier is required to be followed, or that the goods can be supplied at a price lower than that of the competitor, the supply price of the other company was known or foreseeable among the competitors. Belgium metal is so that most of the products supplied to three companies can be produced by giving a contract to the domestic company. On the other hand, the Defendant’s information on the goods supplied to three companies was given to the Chinese company for production, and thus, it can be seen that the Defendant had no other economic value than the sale price of Belgium metal products to be supplied to the Chinese company for sale of the same kind of products.

Finally, as to “data on Non-indicted or Sille”, it is recognized that the Defendant had a Chinese company produce the product through the health team, the non-indicted who was aware of the Defendant’s retirement of Belgium metal, etc. However, according to the records, it can be known that the non-indicted and the non-indicted are engaged in a transaction with other companies, not only Belgium metal, but also in the transaction with other companies among the domestic companies in Korea with respect to which the non-indicted and the non-indicted are in existence. Thus, the personal information and contact information about the non-indicted are known only Belgium metal and it cannot be deemed that other competitors are trade secrets.

Nevertheless, the court below determined that the instant information constitutes trade secrets because it is not known to the public or has independent economic value. The court below erred by misapprehending the legal principles on trade secrets under the Unfair Competition Prevention and Trade Secret Protection Act.

3. Conclusion

Therefore, without examining the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)