Plaintiff 1 and two others (Law Firm Sejong, Attorneys Gyeong-Gyeong et al., Counsel for the plaintiff-appellant)

KC Co., Ltd. (Law Firm Dongin, Attorneys Lee Dong-soo, Counsel for the plaintiff-appellant)

August 12, 2011

Seoul Central District Court Decision 2010Gahap108956 Decided April 15, 2011

1. The plaintiffs' appeal is dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

The decision of the first instance court is revoked. Compulsory execution against the defendant on January 12, 2009 based on the decision of the Seoul Central District Court 2008Kahap3863 decided on January 12, 2009 against the plaintiffs is denied.

1. Basic facts

The following facts are not disputed between the parties, or each entry in Gap evidence 1 to 4, and Eul evidence 1 to 4 (including each number; hereinafter the same shall apply) may be admitted by considering the whole purport of the pleadings.

A. The Plaintiffs, who worked for the Defendant, retired from the Defendant on September 25, 2008, Plaintiff 1, Plaintiff 2, July 14, 2008, and Plaintiff 3 on July 5, 2008, respectively. The Plaintiffs, upon retirement from the Defendant, agreed to protect trade secrets, stating that “any act infringing the Defendant’s trade secrets, such as transfer to a competitor within three years from the Defendant’s confidential information or transfer to another competitor, adviser, adviser, and commission member, will not be done.”

B. However, after the retirement of the plaintiffs, they were employed by the defendant's competitor company (hereinafter "eroin"). On October 30, 2008, the defendant applied for provisional disposition against the plaintiffs such as prohibition of occupational change to Seoul Central District Court 2008Kahap3863, and on January 12, 2009, the above court rendered a provisional disposition on January 12, 2009 that "the plaintiffs shall not be employed by a corporation established at home and abroad for one year from the date of delivery of this decision, and if they violate this, one million won per day shall be paid to the defendant for each violation (hereinafter "the provisional disposition order of this case"). The above decision was served on the plaintiffs on January 16, 2009 and confirmed on February 6, 2010.

C. After that, on May 11, 2010, the Defendant filed a lawsuit against the Plaintiffs on the ground that the Plaintiffs violated the duty of prohibition of employment under the provisional disposition order of this case. In the above case, the Plaintiffs entered the Defendant’s post-retirement post-retirement and retired on April 14, 2009, and entered the Non-Party Cex Co., Ltd. on July 14, 2010, and then re-entered the Defendant’s claim against the Plaintiff on May 26, 2011 (i.e., the period of one-year performance under the provisional disposition order of this case, and (ii) the Plaintiffs received delivery of the provisional disposition order of this case from January 16, 2009 to October 15, 2010 x the Defendant’s second 30-day compulsory execution order of this case (i.e., the Defendant’s second 60-day compulsory execution order of this case).

2. The assertion and judgment

A. The plaintiffs' assertion

Since the plaintiffs retired from erona on April 14, 2009, the plaintiffs performed the duty of omission imposed on the plaintiffs in the provisional disposition decision of this case, and the period of fulfillment of the plaintiffs' obligation under the provisional disposition decision of this case is with maturity until January 15, 2010. Since the collection of compensation based on the decision of indirect compulsory performance is not a sanction or compensation for violation of past duty, but a psychological compulsory means for the performance of duty under the title of the future, the purpose of collecting compensation is lost after the expiration of the period of fulfillment of the obligation under the indirect compulsory performance decision before the completion of the execution of the money, and the creditor cannot collect the compensation already occurred, so the execution of the provisional disposition of this case of this case of this case of this case of which the period of performance has expired shall be excluded.

B. Determination

1) The obligation imposed on the plaintiffs in the decision of provisional disposition of this case shall not be employed by the plaintiffs for 1 year from the date of delivery of the decision of provisional disposition of this case. Thus, if the plaintiffs were employed in the ero-ray during the performance period, it shall be in breach of duty, and the conditions of indirect compulsory performance shall be satisfied. According to the above facts, even if the plaintiffs retired from and ero-rayed from the defendant and received the decision of provisional disposition of this case, it shall be recognized that the plaintiffs continued to be employed in the ero-ray during the one-year prohibition period as stipulated in the above provisional disposition decision of this case, and the retirement from the ero-ray on April 14, 2009 shall be deemed to be formal. Thus, the plaintiffs violated the obligation set forth in the decision of provisional disposition of this case, and the conditions of indirect compulsory performance shall also be satisfied in the decision of provisional disposition of this case.

2) Furthermore, even if the conditions for the occurrence of indirect compulsory performance are met, after January 15, 2010, the maturity of the period of the instant provisional disposition order had been expired, with regard to whether the indirect compulsory performance of the instant provisional disposition order should be excluded. Although the indirect compulsory performance order was a psychological means to induce the obligor to perform the obligation, the procedure of indirect compulsory performance is once terminated by the court rendered the indirect compulsory performance order, and the procedure of real execution of compensation based on the said order is an enforcement procedure based on separate monetary claims independent of the above. It is difficult to view that the obligation of compensation arising from the failure of the obligor to perform the obligation is extinguished even if the obligor has already violated the provisional disposition, on the ground that the obligor has already been discharged from the obligation of payment of compensation due to the lapse of the period of the said obligation before the enforcement of the damages, and the obligor’s exemption from the obligation cannot immediately maintain the effectiveness of the indirect compulsory performance order even after the expiration of the period of the obligation to perform the obligation, and thus, it is reasonable to interpret that the period of indirect compulsory execution order should not be fulfilled within the period of the obligor’s obligation.

3) The case holding that since the plaintiffs' compulsory execution against indirect compulsory performance that occurred before and after the expiration of the period for performing their duty is contrary to the Supreme Court's rulings (Supreme Court Decisions 2002Du2444 Decided January 15, 2004, Supreme Court Decision 2009Da37725 Decided December 23, 2010), legal principles of each of the above Supreme Court's rulings should also apply to this case, the above Supreme Court's ruling as stated by the plaintiffs should ensure that the above Supreme Court's decision as to indirect compulsory performance of duty under Article 34 of the Administrative Litigation Act should ensure the fulfillment of the duty to act in accordance with the final and conclusive judgment as well as that the administrative agency's psychological compulsory performance of the duty to act is not a sanction or compensation for delay of a new disposition in accordance with the purport of the final and conclusive judgment, and thus, it should not be deemed that the plaintiffs' duty to act in question should not be fulfilled within a certain period of time after the second decision of indirect compulsory performance, and thus, it should not be justified as long as the above.

3. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiffs' appeal is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Cho Jae-young (Presiding Judge)