Defendant

Defendant

Park Jong-hee

Law Firm Barun Law, Attorney Kim Jae-ho

Seoul Central District Court Decision 2003Ra9199 Delivered on October 22, 2004

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for six months.

78 days of detention before pronouncement of the judgment below shall be included in the above sentence.

However, the execution of the above punishment shall be suspended for one year from the date this judgment becomes final and conclusive.

Of the seized business files files (Evidence 4), one copy of the “statement of sales unit price”, one copy of the “CAPA”, one copy of the “SM CHIP LD business plan in the year 2002”, one copy of the “SM CHIP CHCR PAT”, one copy of the “SMD business promotion plan in the year 2002”, one copy of the “SM CHCR PAT” (No. 5), one (No. 6), one of the “small and Medium-Term Business Plan for Non-Indicted 1 Stock Company” (No. 7), one of the “LDM REFEC design plan” (No. 10), and one of the “BLUD PED assembly process and improvement measures” (No. 10) shall be returned to each victim non-indicted corporation.

1. The gist of the grounds for appeal by the defendant shall be as follows:

First, if the content of the material owned by a company belongs to the company's trade secret and it is not leaked to the outside, the company is the owner of the material. However, the material that is not so, is owned by the employee who is entrusted with the disposition of the employee, and it is true that the defendant left the office of the non-indicted 1 corporation (hereinafter "victim 1 corporation") with the same material as Paragraph 1 of the judgment of the court below. However, since all of the above material are not trade secrets of the damaged company, it is not trade secrets of the damaged company, the court below erred in the misapprehension of legal principles as to the identity of the property and erroneous recognition that the defendant committed the theft as stated in its judgment, thereby affecting the conclusion of the judgment.

Second, Co-defendant 2 did not reveal the technical trade secret of the damaged company, and even though the defendant conspiredd with Co-defendant 2 of the court below to divulge trade secret or participated in the leakage of trade secret by Co-defendant 2 of the court below, the court below erred in the misapprehension of legal principles as to trade secret and recognized that the defendant committed a crime in violation of the Unfair Competition Prevention and Trade Secret Protection Act in collusion with Co-defendant 2 of the court below's decision by misunderstanding the facts,

Third, the sentence of the court below (six months of imprisonment) is too unreasonable.

2. Determination

A. We examine the defendant's first ground for appeal.

Comprehensively taking account of the evidence duly adopted and examined by the court below and the trial court, each of the materials listed in Paragraph (1) of the criminal facts stated in the judgment of the court below, which the defendant held while withdrawing the damaged company, is a document prepared by the employees of the victimized company in order to achieve the purpose of the victimized company, and the victimized company only allowed the defendant to possess and use such documents to the extent that they are used to achieve the purpose of the victimized company, and it can be recognized that the victimized company did not transfer its ownership to the defendant. Thus, the decision of the court below convicting the defendant of the act of the defendant as stated in Paragraph (1) of the criminal facts stated in the judgment of the court below is proper, and it is not erroneous

B. The defendant's second and third grounds for appeal are examined ex officio, and the prosecutor applied for the modification of indictment with the contents of the facts charged in this case, and this court permitted it. Thus, the judgment of the court below which found the defendant guilty on the remaining facts charged prior to the modification and the remaining facts charged in relation to substantive concurrent crimes under the former part of Article 37 of the Criminal Act, which found the defendant guilty, cannot be maintained any more.

C. Therefore, the judgment of the court below is reversed ex officio pursuant to Article 364(2) and (6) of the Criminal Procedure Act without examining the second and third grounds for appeal, and the judgment below is ruled as follows.

From July 2001 to April 30, 2002, the Defendant worked as a chief executive director of the non-indicted 1 corporation (hereinafter "victim company") at the non-indicted 1 corporation (hereinafter "the non-indicted 1 corporation"), where the production and sales business entity of optical semiconductor LED (the type of optical semiconductors widely used, such as electronic equipment, cell phones, and dives, if he discharges light if he wishes to do so) from around July 2001 to around April 30, the Defendant worked as a chief executive director of the non-indicted 2 corporation, a competitive company of the victimized company from around May 2002, and is working as a chief executive director of the non-indicted 2 corporation.

1. On April 2002, the Defendant retired the victimized Company from office with dissatisfactions about the Defendant’s pay, working conditions, etc., and became an executive director in charge of business as at the time of retirement of the victimized Company, a competitor intending to enter the business sector, which was a competitor 2, the Defendant had the victimized Company become an executive director in charge of business at the time of the retirement of the victimized Company, with a view to using the victimized Company’s LED-related technologies and business data as materials for future production and

On April 202, 2002, in the office of the victimized company located in Geumcheon-gu Seoul Metropolitan Government (number omitted), one copy of “sales unit price product” owned by the victimized company, which is technical and business data of the victimized company, one copy of “LED assembly CAPA”, “SM CHIP LES business plan in 2002,” one copy of “SM CHIP LCR (SCR)” (part of these business files files files No. 4), “1 copy of “the business promotion plan in 2002” (No. 5), “non-indicted 1 corporation mid- and long-term business plan” (No. 6), “LDM RECRM RED design drawings” (No. 7), “BELM RED assembly and improvement measures” (No. 10).

2. When the defendant knew that Co-defendant 2 (one day) who entered into an agreement with the victimized company to maintain trade secrets he/she acquired while working as a vice president of the victimized company as a technical research adviser from October 1997 to February 22, 2003 while working as a vice president of the victimized company and technical research institute, and that Co-defendant 2 (one day) was unable to receive significant bonuses or incentives from the victimized company even though he/she developed the WHE manufacture method as at the time when he/she worked as the victimized company, he/she did not receive any significant losses or incentives from the victimized company, he/she did not receive any trade secrets from the lower court on February 2003, he/she reported that Co-defendant 2, Co-defendant 2, who was working as the president of the victimized company from around 200 to around 200, Co-defendant 2, Ltd., Ltd., who was working as the design data for new technology research and development of the company, as well as that of 200,000 won.

Co-defendant 2 of the court below, from March 9, 2003 to the main company of the above SS1 (Land Number omitted) located in the voice branch of the Chungcheongnam-gun, and on several occasions, on March 2003, Co-defendant 2 delivered the printed printed out of the "BLUE & WHE Lo DA" interpretation to Nonindicted Co. 2, an officer of the development team of the Nonindicted Co. 3, the aforementioned company, who was an officer of the development team of the said company, in violation of the duty of disclosure of confidential business secrets to Nonindicted Co. 3, the aforementioned non-indicted Co. 2, the aforementioned business secrets, which were stored in the above Nowon-gun computer, were distributed to the above non-indicted Co. 3, the above non-indicted Co. 2, the confidential business secrets of the company, which were stored in the above Nowonbuk-gun computer, and in violation of the duty of disclosure of confidential business secrets to the above non-indicted Co. 3, Ltd., Ltd.

The first fact in each of the facts stated in the ruling

1. The defendant's partial statement in the second trial records of the court below;

1. Each prosecutor's protocol of examination of the accused;

1. Each protocol of seizure;

1. Each and existing evidence of seizure as referred to in subparagraphs 4 through 7, and 10;

Comprehensively,

Facts No. 2 of the Judgment

1. In the second trial record of the court below, each part of the statement of the defendant and co-defendant 2 of the court below

1. The statement of Nonindicted 4’s witness in the third trial record of the court below

1. Each statement of Nonindicted 5’s witness in the trial records of the court below’s fifth to seventh trial records

1. Each prosecutor's protocol of interrogation of the defendant and co-defendant 2 of the court below (part)

1. The prosecutor’s statement concerning Nonindicted 4

1. Each investigation report (a) shall be accompanied by a copy of the technical employment contract, etc., a copy of the seized article, a copy of the seized article, a copy of the stolen article, a appendix of the Seoul semiconductor KRD manufacturer's file output material, a appendix of the PED manufacturer's technical output material, a appendix of the PED manufacturer's output material, a appendix of the PED manufacturer's data output material, and a appendix of the output of the

1. DolUE&WHITE's confirmation terms and conditions, WHITE 103 LINE DA 103 LINE's interpretation, reliability Experimental DAABE, CHIP REST REBLET

As a whole, each of them can be recognized.

All facts in the ruling are proven.

1. Relevant legal provisions concerning criminal facts;

§ 329 of the Criminal Act

Act No. 2: Article 18(2)2 of the former Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 7095 of Jan. 20, 2004; hereinafter the same) and Article 30 of the Criminal Act

1. Aggravation of concurrent crimes;

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

1. Calculation in the number of unconvicted days of detention;

Article 57 of the Criminal Act

1. Suspension of execution;

Article 62 (1) of the Criminal Act (In the case of a trial, the fact that the damaged company expresses its intention not to punish the accused, etc.)

1. Return of victims;

Article 333(1) of the Criminal Procedure Act

The defendant asserts that each material of the "BLUE&W WHITD office confirmation condition", "WHITE 103 LINE DA Interpretation", "Reliability Test DAbabbation table", and "CHIP LABT preparation", which was indicted in collusion with Co-defendant 2 of the court below, is related to products not manufactured in the non-indicted 2 corporation, and thus, it is not possible to help or be established in theory, and it is merely a technology that can not be applied to actual production, or a material that can be obtained through testing if it is secured by anyone regardless of production technology, and that it does not constitute a technical trade secret useful to the damaged company under the former Unfair Competition Prevention and Trade Secret Protection Act.

The term "technical trade secrets" under Article 18 (2) 2 of the former Unfair Competition Prevention and Trade Secret Protection Act means the production method, sale method and other technical information useful for business activities, which are not generally known and have independent economic value, and have been maintained and managed in secret by considerable effort (see Supreme Court Decision 98Do4704 delivered on March 12, 199, etc.).

Comprehensively taking account of the evidence duly adopted and examined by the court below and the court below, "BLE Do DoWD Office Establishment Conditions" and "CHIP LINBLT Clause" include information prepared by the injured company as a result of research and experiment, and include the mixed ratio of parts and raw materials for the manufacture of White DoD, manufacturing process specifically described information, and "WHITE 103 LINE 103 LAT Interpretation", "Reliability Experimental List" means that the injured company has entered the results of checking the quality of the prototype or various experiments for the improvement of manufacturing technology. Each of the above materials is not widely known, and even if the injured company made considerable efforts to prevent the disclosure of trade secrets between its employees or to prevent the disclosure of trade secrets, etc., each of the above technical materials are not acknowledged as useful or useful for each of the above facts. Accordingly, each of the above facts can only be acknowledged as non-indicted company's trade secret protection measures.

Therefore, the defendant's above assertion is without merit.

Judges Lee Sung-hun (Presiding Judge)