[1] Whether the concept of "trade secret" under Article 163(1)2 of the Civil Procedure Act should be interpreted in the same way as the concept of "trade secret" under the Unfair Competition Prevention and Trade Secret Protection Act (affirmative)

[2] The need to protect trade secrets as stated in the court records in an uncertain state

[3] The case holding that the court below's dismissal of the application for restriction, etc. on perusal of the above contract is erroneous in the misapprehension of legal principles as to trade secrets, etc. under Article 163 (1) 2 of the Civil Procedure Act and Article 2 subparagraph 2 of the Unfair Competition Prevention and Trade Secret Protection Act, in case where Eul, a third party party to the other case, applied for entrustment of delivery of documents to the court records of the case where Gap, a third party Gap, had been adopted, and Eul, a party to the lawsuit of the undetermined case, applied for restriction on perusal of some documents, etc.

[1] According to Article 163(1)2 of the Civil Procedure Act, where there is an explanation that the trade secret possessed by the party is included in the trial records, the court may limit the party who can apply for perusal, etc. of the part of the trial records by decision upon the party’s request. The above provision provides that “any of the trade secrets at time refers to the trade secret under Article 2 subparag. 2 of the Unfair Competition Prevention and Trade Secret Protection Act.” Thus, the concept of the trade secret should be interpreted in the same way as that of the trade secret under the Unfair Competition Prevention and Trade Secret Protection

Article 2 Subparag. 2 of the Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 13081, Jan. 28, 2015) requires that a trade secret be maintained as confidential by considerable effort. The Supreme Court Decision 2008Do3435, Jul. 10, 2008; Supreme Court Decision 2016Do10389, Jan. 25, 2017; “The term “where a trade secret is maintained by considerable effort” means any indication or notification that the information is confidential; it means a situation in which it is recognizable that the information is maintained and managed in an objective manner, such as restricting access to the information or imposing the duty of confidentiality on persons who have access to the information; thereafter, Article 2 Subparag. 2 of the Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 13081); and Article 2 Subparag. 2 of the Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 13081, Jul. 10, 2019).

[2] Any person may inspect and copy a final judgment (Article 163-2 of the Civil Procedure Act), and the finalized court records shall be perused for a certain purpose, such as academic research (Article 162(2) of the Civil Procedure Act). On the other hand, only the party concerned or a third party who clearly expresses interest in the court records of an undetermined state shall be allowed to peruse them (Article 162(1) of the Civil Procedure Act).

However, in cases where the delivery of a document subject to an undetermined one of the final and conclusive court records is entrusted pursuant to Article 352 of the Civil Procedure Act, the court that keeps the pertinent court records bears the duty to cooperate therein, unless there is any justifiable reason (Article 352-2 of the Civil Procedure Act). Accordingly, even a third party who does not have an explanation of interest, if the request for the dispatch of document is adopted, the court’s request for the dispatch of document is not restricted by Article 163 of the Civil Procedure Act regarding the subject records, it would result in allowing perusal of the undetermineded court records without restriction. The court’s request for delivery is made without designating the subject document. In light of the reality that the applicant directly designated the subject records after the decision on the dispatch of document is being made and then the necessary part is designated and then the delivery of document is being entrusted, there is a greater need to protect the trade secrets stated

[3] In a case where Gap corporation, a third party to the other case, applied for the entrustment of delivery of documents to the court records of the case where Gap corporation, a third party to the other case, has yet to be determined, and Eul corporation, a party to the other case, included a trade secret in some of the above trial records, and applied for the restriction of perusal of some documents, the case holding that the court below's order that the above provision of the contract contains a specific duty to explain that Eul corporation's duty to maintain confidentiality is not only a contract entered into with Eul company, but also a contract entered into with a third party, and that the contract's duty to maintain confidentiality is not limited to the contract's contract's contract's contract's contract's contract's contract's contract's contract's contract's contract's contract's contract's contract's contract's contract's contract's contract's contract's contract's contract's contract's contract's contract's contract's contract's contract's contract's contract's contract's contract's contract's contract's contract's contract's contract's contract's duty to maintain, officer, employee, employee, and employee, etc.

[1] Article 163(1)2 of the Civil Procedure Act, Article 2 subparag. 2 of the former Unfair Competition Prevention and Trade Secret Protection Act (Amended by Act No. 13081, Jan. 28, 2015); Article 2 subparag. 2 of the former Unfair Competition Prevention and Trade Secret Protection Act (Amended by Act No. 16204, Jan. 8, 2018); Article 2 subparag. 2 of the former Unfair Competition Prevention and Trade Secret Protection Act / [2] Articles 162(1) and (2), 163, 163-2, 352, and 352-2 of the Civil Procedure Act / [3] Articles 162(1) and (2), 163, 163-2, 352, 352-2, 352-2, 352-2, and 218 of the former Unfair Competition Prevention and Trade Secret Protection Act (Amended by Act No. 24218, Feb. 16, 2018, 2015)

[1] Supreme Court Decision 2008Do3435 Decided July 10, 2008 (Gong2008Ha, 1212) Supreme Court Decision 2016Do10389 Decided January 25, 2017

Asian or Air Co., Ltd. (LLC, Kim & Lee LLC, Attorneys Song-chul et al., Counsel for the plaintiff-appellant)

LSScarpherd Korea Co., Ltd.

Seoul High Court Order 2019Ra20065 dated July 4, 2019

Of the attached list 2 of the order of the court below, the part concerning the documents No. 6-1 and No. 2 shall be reversed, and this part of the case shall be remanded to the Seoul High Court. The remainder of the reappeal shall be dismissed.

The grounds for reappeal are examined.

1. Vindication of a trade secret in the request for restriction on inspection of trial records;

A. Concept of trade secrets

According to Article 163(1)2 of the Civil Procedure Act, where there is an explanation that the trade secret possessed by the parties is included in the trial records, the court may limit the party who can apply for perusal, etc. of the part of the trial records by decision upon the party’s request. The above provision provides that “any trade secret at this time means any trade secret provided for in Article 2 subparag. 2 of the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter “Unfair Competition Prevention Act”).” Thus, the concept of the above trade secret should be interpreted the same as that of the trade secret under the Unfair Competition Prevention Act.

Article 2 Subparag. 2 of the former Unfair Competition Prevention Act prior to the amendment by Act No. 13081, Jan. 28, 2015 requires that the trade secret be kept confidential by considerable effort. The Supreme Court Decision 2008Do3435, Jul. 10, 2008; Supreme Court Decision 2016Do10389, Jan. 25, 2017; “the act of maintaining secret by considerable effort” means any indication or notification that the information is recognizable as secret, and any person who has access to the information maintains and manages it objectively as secret, such as restricting access to the information or imposing a duty of confidentiality on the person who has access to the information.” After that, Article 2 Subparag. 2 of the former Unfair Competition Prevention Act, amended by Act No. 13081, Jul. 10, 2008; Article 2 subparag. 2 of the former Unfair Competition Prevention Act (amended by Act No. 13081, Feb. 19, 2019>

(b) Restriction on inspection, etc. of unconfirmed court records;

Any person may peruse and duplicate a final judgment (Article 163-2 of the Civil Procedure Act), and the finalized court records shall be perused for a certain purpose, such as academic research (Article 162(2) of the Civil Procedure Act). On the other hand, only the party concerned or a third party who clearly expresses interest in the court records of an undetermined state shall be allowed to peruse them (Article 162(1) of the Civil Procedure Act).

However, in cases where the delivery of a document subject to an undetermined one of the final and conclusive court records is entrusted pursuant to Article 352 of the Civil Procedure Act, the court that keeps the pertinent court records bears the duty to cooperate therein unless there is any justifiable reason (Article 352-2 of the Civil Procedure Act). Accordingly, even a third party who does not have an explanation of interest, if the request for the dispatch of document is adopted, the court’s request for the dispatch of document is not restricted by Article 163 of the Civil Procedure Act regarding the subject records, it would result in allowing perusal of the undetermineded court records without restriction. The court’s request for delivery is made without designating the subject document. In light of the reality that the applicant is being directly designated after the decision on the dispatch of document, and the necessary part is designated after the request for delivery of document is being made, the need to protect trade secrets entered in the undetermined one of the final and conclusive

2. Review of the instant case

A. The record reveals the following facts.

1) Of the documents subject to the applicant’s application for restrictions on perusal, the documents No. 6-1 and No. 2 in the attached list No. 6-1 and No. 2 are the contracts that the applicant entered into with a third party (hereinafter “main contract”). Article 17 of the aforementioned agreement between stockholders imposes a specific obligation not only on contractual parties to maintain confidentiality, but also on contractual parties to take all necessary measures so that the contractual parties can comply with all the matters under Article 17.” Meanwhile, by prescribing that the said provision is valid for three years after the termination of the agreement, the burden of the obligation is limited within a reasonable period of time.

2) Meanwhile, the other party to the lawsuit in the instant case, who is a third party, requested and adopted a commission to send documents on the instant records.

B. As stipulated in Article 17 of the Agreement between the Stockholders of this case, if the content of the confidentiality clause is not limited to simply imposing an abstract and general confidentiality duty, and furthermore, it can be deemed that the other party imposes a specific supervisory duty to keep the content of the agreement confidential, such as imposing a duty to maintain confidentiality on executives, employees, etc. who can access the pertinent agreement, the management method of the relevant agreement or on the other party’s employees, etc., there is room to deem that there is a prima facie proof that there is a trade secret in relation to documents on which such a duty to maintain confidentiality is imposed. In addition, in determining whether a request for the delivery of documents is included in the relevant litigation record, the issue of whether a trade secret is included in the relevant litigation record is not considered, and in this case, there is a

Nevertheless, the lower court dismissed the instant application seeking restriction on perusal, etc. on the ground that the applicant’s explanation as to the existence of trade secrets in a contract between shareholders is insufficient. Therefore, the lower court erred by misapprehending the legal doctrine on the vindication of trade secrets under Article 163(1)2 of the Civil Procedure Act and Article 2 subparag. 2 of the Unfair Competition Prevention Act, thereby adversely affecting the conclusion of the decision. The ground of reappeal assigning this error is with merit.

C. The lower court dismissed the instant application on the grounds that there was no supporting evidence that the applicant’s remaining documents except for the contract between shareholders among the documents subject to restriction on access, etc., constituted a trade secret entry. Examining the relevant legal principles and records, the lower court’s aforementioned determination is justifiable, and there was no error of law as otherwise alleged in the grounds of reappeal.

3. Conclusion

Therefore, the part concerning the contract between shareholders among the attached list 2 of the order of the court below is reversed and that part of the case is remanded to the court below for a new trial and determination. The remaining reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de (Presiding Justice)