(영문) 수원지방법원 안산지원 2020.8.26. 선고 2019고단3178 판결

Of the facts charged in this case, the facts charged by the defendant A's employees in violation of the Unfair Competition Prevention and Trade Secret Protection Act of No. 1-A, No. 2-b, and No. 8 and No. 9 of the attached Table No. 4 of the crime sight table 8 and No. 9 of the attached Table No.

The summary of the acquittal part in this judgment shall be publicly notified.

Reasons

Criminal facts

【Basic Facts and the Status of Defendants】

1. The current state of competition in the ESD market for automobiles, and the location of the damaged company;

D Co., Ltd. (hereinafter referred to as "victim") is a corporation of the Republic of Korea established in 1992, the fourth in the world of sales in 2016, the first in the Republic of Korea, the first in the Ethy in the Republic of Korea, the second in the Ethy in the Ethy in the 2016 Ethy in the production industry, and the second insty in the Ethy in the Ethy in the value of high-value products, and the first insty in the Ethy in the Ethy in the automobile market, and the defendant A Co., Ltd. (hereinafter referred to as "Defendant A") is a competitor of the damaged company that entered the automobile as the owner after the Ethy in the automobile market.

The PED products mainly produced by the injured company are PED products, F, incluence lux F, a white light, tail light, tail light, and hedging, which are used in the PED, G, the damaged company's "LED pressesing technology" was invested and developed with a research cost of a million won. On May 12, 2016, it was confirmed by the Minister of Trade, Industry and Energy that it falls under the industrial technology within the scope of advanced technology under Article 2 and Article 14-3 of the Act on Prevention of Divulgence and Protection of Industrial Technology, Article 19-2 (1) of the Enforcement Decree of the same Act, Article 4-4 of the Enforcement Rule.

The injured company filed a patent suit against the Defendant A in Germany, Italy, the United Kingdom, Japan, and the Republic of Korea on the grounds of the infringement of the LED patent applied to G from June 23, 2017 to February 23, 2018. On February 14, 2018, the injured company filed a patent suit against the Defendant A in the United Kingdom.

2. Career of Defendant A’s employees

(a) H;

H joined the damaged company on October 21, 2013, and served as the chief of L. Root Business, which is used as a motor vehicle from May 2014. After promotion to the regular business on April 2015, H retired on June 1, 2016 as the head of the AM business group, and retired from office on June 1, 2016.

On July 18, 2016, H entered the defendant A under the name of "I" and "J" in violation of the prohibition of competition and a penalty agreement entered into with the victimized company on July 18, 2016, and since the establishment of "ED Research, Development and Business Department for Motor Vehicles" on August 2016, the Automist has overall control over Vice.

The above H came to know the fact that the victimized company was in violation of the above H’s agreement on the prohibition of competitive business in the course of the transfer of Defendant A, and on November 24, 2016, the application for provisional injunction was defective at the Seoul Central District Court on November 24, 2016, and continued to exercise overall control over Defendant A’s A’s A's A's A's A's A's A's A's A's A's company as an affiliated company of Defendant A after consultation with the above company’s officers

Since then, on April 12, 2017, the Seoul Central District Court rendered a provisional disposition that prohibits Defendant A from being employed, and filed an objection to the provisional disposition with the same court on April 24, 2017. However, the Supreme Court dismissed the reappeal on April 2, 2018. On November 16, 2017, the Seoul Central District Court rendered a judgment that prohibits Defendant A and its affiliated companies from being employed and paid KRW 100 million to the victimized company pursuant to the penalty agreement, but the appeal was dismissed by the Seoul High Court on July 12, 2018, and the said judgment became final and conclusive on November 8, 2018.

(b) L;

L is a member of L.A. In October 15, 2014, a member of the business division, a car development1 team, a AM-out/out-of-the-counter development team, a PGK development team team, and a Mos Development team team leader, who is employed by the damaged company, and was in charge of research and development of AM business group on behalf of the head researcher on July 2016.

On August 20, 2016, L, which was a workplace company, was solicited by the above H to resign from Defendant A, was visited only on August 20, 2016 and met with the officers of the above company. On September 21, 2016, L, after withdrawal from the victimized Company, entered the above company under the name of “M”, “N”, and “N” and comprehensively controlled the Autron Engine divis.

(c)O;

O entered the damaged company on December 1, 201 and 17. From December 1, 2012, 201, as the Deputy Director of the Automobile Lord Project Department, he was in charge of technical business, and from July 1, 2016 to the Deputy Director of the AM Project Group.

On August 20, 2016, the aboveO visited only the company from the above H to the severance from employment of A, reported the working conditions with the officers of the above company and met with them, and entered the company on October 17, 2016, prior to retirement from the damaged company, and entered the company as "P" and was in charge of technical business in Unit.

3. A confidentiality management system for damaged companies;

The injured company operates information security policies, security management regulations, and prohibits the employees from divulging and using confidential information with property value through the preparation of employment contracts, confidentiality contracts, trade secret protection pledges, security pledges for executive officers, and security education, and all documents are prepared, stored, perused only through the EC system, prohibited from copying, and prohibited from photographing photographs, and limited the scope of perusal of document files according to the departments, duties and positions to which they belong, and the removal of document files is permitted only when prior approval is obtained through prior approval, and stored and managed EC access records such as visitors, access parties, access time, access documents, perusal documents, work contents, etc.

The above H, L, andO also signed a written pledge stating that "I will not take out or divulge technical data while in office as a victimized company," received security education every year, at the time of withdrawal, and confirm compliance such as a written pledge prepared at the time of entry or employment, and return all information related to the work to the company."

【Criminal Facts】

Defendant A acquired and used a trade secret of the victimized company with knowledge that the trade secret was used or used in a foreign country for the purpose of obtaining unjust profits or causing damage to the victimized company in the same manner as stated in Section 1-b, Section 1-a, Section 2-A, Section 3, No. 4, No. 1-7 (excluding any act of reproduction and editing by opening a Q file) of the List of Offenses No. 4, the attached Table No. 3, or the trade secret of the victimized company.

Summary of Evidence

1. Partial statement of the defendant;

1. Legal statement of the witness R;

1. Statement of each police statement of S, T, U, and V;

1. A seizure record, each protocol of seizure, and each list of seizure;

1. One copy of perusal of data at the time of departure from the Republic of Korea, on September 18, 2016, on the O, H perusal file information,O, H only H, and one copy of the access details at the time of departure from the Republic of Korea, on September 18, 2016, of LD company access records, H pledges and written consents, L pledges and written consents, O pledges and written consents, results of analysis of digital evidence, August 10, 2016, one copy of O's EC access records, weight.xlsx file analysis contents, Rage1jpeg to Lage30.peg photo data, respectively;

1. Data printed out of the leaked DNA trade secrets, documents printed out using the file data of the victimized company, and data for arranging DNA trade secrets;

1. Report of internal investigation (verification of the A organization list, etc.), report of internal investigation (verification of computerized records of victims at the time of departure from the Republic of Korea from the Republic of Korea from the Republic of Korea from the Republic of Korea from the Republic of Korea from the Republic of Korea from the Republic of Korea from the Republic of Korea from the Republic of Korea from the Republic of Korea), investigation report (examination report on a suspect's cell phone file file file), investigation report (examination report on HMB), investigation report (examination report on the execution of the first seizure warrant), investigation report (examination of the seizure file of the second seizure warrant), investigation report (verification of the organization of the Republic of Korea from the Republic of Korea), investigation report (verification of employment contract, etc.), investigation report

Application of Statutes

1. Article applicable to criminal facts;

Articles 19 and 18(1) of the former Unfair Competition Prevention and Trade Secret Protection Act (Amended by Act No. 16204, Jan. 8, 2019; hereinafter referred to as the "former Unfair Competition Prevention Act").

1. Aggravation for concurrent crimes;

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

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

① The jurisdiction of the Republic of Korea over Defendant A’s negligent act in a foreign country, which is a foreign corporation, cannot be recognized. ② In entering the facts charged under the joint penal provisions, the indictment procedure is unlawful and invalid as it is written as if it were based on the corporation’s intentional responsibility. ③ The entire facts of the indictment are in violation of the principle of an indictment only, and the indictment procedure is invalid as it is unlawful, and ④ The prosecution procedure was not negligent in giving due attention

2. Determination

A. As to the first argument

The Criminal Code applies to foreigners who have committed crimes in the territory of the Republic of Korea (Article 2 of the Criminal Code), which includes not only the act of practice but also the case where the result occurred in the territory of the Republic of Korea. Since the damaged company of this case is a Korean corporation located in the Republic of Korea and the result of the act occurred in the territory of the Republic of Korea,

B. As to the second argument

In a case where the representative of a corporation, or an agent, employee, etc. of a corporation or an individual commits an offense in connection with the business of the corporation or the individual, not only shall the offender be punished, but also the corporation or the individual be punished by the relevant Article, and also the corporation or the individual is not negligent in giving due attention and supervision concerning the relevant duties to prevent such offense, if the corporation or the individual files a public prosecution against the corporation or the individual, it shall not be specifically specified in the facts charged (see Supreme Court Decision 2010Do1601, Sept. 13, 2012). Thus, this part of the allegation is rejected, since it is judged that there was no illegality in the method described in the facts charged in the instant case where a public prosecution against an employee of the corporation intentionally commits an offense in connection with the corporation’s business, since there was no illegality in the law as to the method described in the relevant facts charged.

C. On the third argument

In light of the type and contents of the crime as stated in the facts charged, the issue of violation of the principle of an indictment only shall be specifically determined in the relevant case based on the contents of the documents and other things attached or quoted in the indictment, and whether the facts recorded in the indictment other than those required by the law may hinder the judge or jury from understanding the substance of the crime (see, e.g., Supreme Court en banc Decision 2009Do7436, Oct. 22, 2009). The part of the indictment in this case concerns the location of the damaged company, the career of employees, and the confidentiality management system of the victimized company, and it does not relate to the facts charged in this case. Rather, it is necessary to specify or understand the facts charged, and even if it contains somewhat unnecessary parts, it does not constitute an obstacle to understanding the substance of the crime by causing a judge's prejudice to the judge, and thus, it does not accept this part of the allegation.

D. On the fourth argument

In the joint penal provisions, the issue of whether a corporation, employee, etc. has neglected the duty of considerable attention or management and supervision shall be determined by comprehensively taking into account all the circumstances related to the relevant violation, namely, the legislative purport of the relevant Act, the degree of infringement of legal interests anticipated to violate the penal provisions, the purport of establishing both punishment provisions concerning the relevant violation, as well as the specific form of the relevant violation and the degree of damage or result resulting therefrom, the business size of the corporation, the possibility of supervision over the offender, or the actual measures taken by the corporation

According to the witness H, L, andO’s legal statement and written oath (No. 97, such as documents evidencing the application for the examination of the prosecutor), the fact that the defendant sought a written oath to the effect that the defendant A would not infringe the existing company’s trade secrets, intellectual property rights, etc. in employing the defendant H, etc. However, in employing the employees working for the victimized company under competition with the defendant A for a short time, only the above content of the written pledge is sought (in addition, even though it is difficult to view that the defendant's employees and others have sufficiently understood the contents of the written pledge described in English, they did not take any measures to properly understand it), and since there is no particular restriction on the use of the mobile storage medium, so that H could easily copy and store the cell phone in which the damaged company’s trade secrets were stored, it is difficult to view this part of the allegation as well.

Reasons for sentencing

The main cause of the instant occurrence was that Defendant A neglected to exercise due care and supervision to prevent infringement of trade secrets in employing employees of a competing company. Among the trade secrets of the victimized company that H acquired by the victimized company, material information, such as information on cost and selling price of the LED product produced by the victimized company, is included, and such information is not considered as being utilized for Defendant A’s business activities. However, there is no obvious circumstance to deem that Defendant A planned or participated in the instant infringement of trade secrets itself by H. However, other trade secrets than cost and selling price information seems to be difficult to utilize the leaked data as it is, there is no other circumstance to deem that the actual damage was realized in the victimized company, and there is no other circumstance to deem that the damage company was realized, and all the circumstances, such as the importance of the trade secrets acquired and used by H, and the degree and number of the damage company.

The acquittal portion

1. The part of the facts charged regarding whether the ESD presses constitute industrial technology

A. Summary of the facts charged

Of the facts charged in this case, the summary of violation of the Act on the Prevention and Protection of Industrial Technology Outflow is that H is an industrial technology (a advanced technology). Under the premise that H is an employee’s trade secret of the damaged company acquired from P and P, as described in Section 1-b and Section 2-A-A-B, “W.xlsx files,” W.xlsx files, which is a trade secret of the victimized company acquired from P and L, and P/C process (O: No. 19,20, L: No. 20, No. 30, No. 14, No. 14 of the Schedule of Crime List 2 of the List of Crimes). The Defendant used the industrial technology in a foreign country for the purpose of obtaining unjust profits or releasing damage to the victimized company.

B. Determination

We examine whether the framework of LED is an industrial technology (advanced technology) under Article 14 subparagraph 2 of the former Act on Prevention of Divulgence and Protection of Industrial Technology (amended by Act No. 16476, Aug. 20, 2019; hereinafter referred to as the "former Industrial Technology Act").

1) Article 2 subparag. 1 of the former Industrial Technology Act defines industrial technology as any of the following technologies designated, publicly announced, publicly announced, publicly announced, and certified by this Act or any other Act or any order (limited to Presidential Decree, Ordinance of the Prime Minister, Ordinances of the Ministries) delegated by the head of an administrative agency (where the relevant business is delegated or entrusted, referring to the head of an agency, corporation, or organization delegated or entrusted with such business) to enhance industrial competitiveness or prevent divulgence, etc. among the methods and technical information necessary for the development, production, distribution, and use of products or services. Article 3 of the former Industrial Technology Act provides that technologies falling under the scope of advanced technology and products publicly notified pursuant to Article 5 of the Industrial Development Act among the following:

2) On May 12, 2016, the facts charged in the instant case merely indicate that the PES framework constitutes an industrial technology belonging to the scope of advanced technology pursuant to Articles 2 and 14-3 of the former Industrial Technology Act, Article 19-2(1) of the Enforcement Decree of the same Act, and Article 4-4 of the Enforcement Rule of the same Act, and that it falls under any of the advanced technologies listed in the notification of the scope of the above advanced technology and products. The fact of issuing a written confirmation of industrial technology under the name of the Minister of Trade, Industry and Energy does not necessarily mean that the PES framework falls under an industrial technology under Article 14 subparag. 2 of the former Industrial Technology Act, and it should be recognized that it constitutes a specific technology among the advanced technologies listed in the notification of the scope of the above advanced technology and products.

3) However, according to the application form for confirmation of industrial technology in the preparation of the injured company and the industrial technology confirmation certificate under the name of the Minister of Trade, Industry and Energy, the injured company applied for confirmation of industrial technology on April 20, 2016 as "high-efficiency core device" in the field of technology, "Lighting / ELD lighting", and "Z" on May 12, 2016, and was issued by the Minister of Trade, Industry and Energy to certify industrial technology. However, the technical field, classification and name stated in the application form for confirmation of industrial technology are not listed in the notification of the scope of the above advanced technology and products.

Nevertheless, the Minister of Trade, Industry and Energy does not find any circumstance that the Minister issues a certificate of industrial technology by examining whether the ESS framework is the technology listed in the notification of the scope of the above advanced technology and products in issuing a certificate of confirmation of industrial technology. Even when examining the notification of the scope of the above advanced technology and products, it is not possible to find any advanced technology consistent with the ESS framework technology, and there is no evidence submitted in this regard.

4) If so, this part of the facts charged constitutes a case where there is no proof of crime and thus, a not-guilty verdict should be pronounced pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, as long as the court found the defendant guilty of a violation of the Unfair Competition Prevention and Trade Secret Protection Act (overseas divulgence, etc. of trade secrets) due to the acquisition of the above technology

2. Items of reliability inspection and the part of facts charged relating to the value of test results

A. Summary of the facts charged

Defendant A acquired a trade secret of the victimized company with the knowledge that his employee H will use or use the trade secret in a foreign country for the purpose of obtaining unjust profits or causing damage to the victimized company in the manner described in Section A(a) of Attached Form 1.

B. Determination

1) We examine whether the reliability inspection items and test value of G, which are the LED products of the victimized company, listed in the "APdf" and the "AB.Pdf" files, constitute trade secrets under Article 18(1) of the former Unfair Competition Prevention Act.

2) Article 2 Subparag. 2 of the former Unfair Competition Prevention Act defines a trade secret as a method of production, method of sale, and other technical or managerial information useful for business activities, which is not known to the public and has independent economic value, and is maintained in secret by reasonable efforts.

3) First of all, the items of reliability inspection in AEC- Q101 or IEC60810, which are international standards related to the reliability inspection of motor vehicle electronic parts, are deemed to be known to many and unspecified persons through media, such as the Internet or publications, and it is clear that they do not constitute trade secrets since they cannot be deemed to be information not known publicly.

4) Next, with respect to the value of reliability test results, information on the reliability test results of G, which is a damaged company’s LED product, can only be perused through the EC system, which is a document management system of the victimized company, and is prohibited from reproduction or photographing, etc., and it can be seen as information that has not been openly known to an unspecified number of unspecified people because it cannot be accessed through Internet or publications, etc.

However, in order to constitute a trade secret under the former Unfair Competition Prevention Act, the information must have an independent economic value, and the "in this context has an independent economic value" means that the owner of the information can benefit from competition with the competitor through the use of the information, or that considerable expenses or effort is needed for the acquisition or development of the information (see, e.g., Supreme Court Decision 2009Da12528, Jul. 14, 201). The value of reliability test results does not constitute a trade secret under the former Unfair Competition Prevention Act.

5) Meanwhile, the Defendants asserted that, rather than seeking information on the results of a reliability test, the Defendants perused and taken photographs to verify the reliability test items. Of the photographs taken by Defendant H, the test items and test conditions were fully taken in the case of AEC- Q101 reliability test-related photographs among the photographs taken by Defendant H, while the test results were taken without showing some of the test results. In light of the fact that the Defendants’ aforementioned change is reasonable, and if the Defendants perused and photographs were taken to verify the reliability test items disclosed, it is difficult to deem that the Defendants’ intention of occupational breach of trust is recognized.

6) Therefore, this part of the facts charged constitute a case where there is no proof of crime and thus, acquitted under the latter part of Article 325 of the Criminal Procedure Act, and publicly notified the summary of the judgment under Article 58(2) of the Criminal Act

3. The part of the facts charged in relation to the LGP file

A. Summary of the facts charged

1) The part on violation of the Unfair Competition Prevention and Trade Secret Protection Act due to the use of H and L trade secrets

Defendant A used the trade secret of the victimized company with knowledge that Defendant A used or used the trade secret in a foreign country for the purpose of obtaining unjust profits or causing damage to the victimized company in the manner described in Section 2 Section 2 Section b. of [Attachment], which is his employee H or L, in connection with Defendant A’s business.

2) The portion in violation of the Unfair Competition Prevention and Trade Secret Protection Act due to the use of trade secrets listed in attached Table 4 of H’s crime sight table 4

Defendant A used the trade secret of the victimized company with knowledge that his employee H would use or use the trade secret in a foreign country for the purpose of obtaining unjust profits or causing damage to the victimized company in the manner described in Section 3 of the "criminal facts committed by Defendant A".

B. Determination

1) This part of the facts charged is premised on the premise that Q file (the list No. 52-2, such as the documents evidencing the application by the prosecutor, etc.) is trade secret of the victimized company. Accordingly, it is difficult to believe it for the following reasons, and there is no other evidence to acknowledge it.

A) The above evidence is either a unilateral assertion or there is no objective evidence to support both the statements of employees of the victimized company or the written statement stating the claims of the victimized company.

B) On the other hand, AD, which was the head of a research institute of AC, a collaborative company, which is a collaborative company that carried out a Qlight development project together with the victimized company, was present as a witness in the case related to H, L andO (this court 2018 high-level 3274), and the portion of "the progress of production of the first DEM SPL among Q files", "the progress of production of the first parts", "the progress of production of the first party sample sample production," "the production of the first party sample 1 mass production process," "oil 1 mass production process," "the processed parts of the second part" is the file that it was prepared and provided to H, and ② the design of luminous, the first part of which is an important factor in the Qlight development project, was provided by AC, and there was no technology related to optical design and mining interpretation for the victimized company, and ③ there was no statement of DD's employees at the time of the development of the above MPE development.

C) According to Article 7(3) of the Confidentiality Agreement concluded between the victimized Company and AC Company (List 70-2 of the list of documents evidencing the application for inspection, etc.), the right to file a confidential information provided by AC Company is not transferred to the victimized Company. Thus, it cannot be deemed that the right to file a confidential information provided by AC Company is transferred to the victimized Company.

D) Of Q files, the remainder, excluding the part drawn up and provided by AD, is only “RCL PKG master concept comparison.” The content is simply a combination of the structure of the product to be developed into a forest compared with the structure of the existing product without mentioning the specific numerical value to the extent that it could have been actually produced, and it is difficult to view it as a technical information having independent economic value.

2) Therefore, since this part of the facts charged constitute a case where there is no proof of a crime, each of the facts charged is not guilty as to the violation of the Unfair Competition Prevention and Trade Secret Protection Act in the annexed Table 2-b.(3) No. 4 year of crime list 8 and 9 of the annexed Table 2-2, and the summary of the judgment in accordance with Article 58(2) of the Criminal Act, and the violation of the Unfair Competition Prevention and Trade Secret Protection Act in the annexed Table 4-1-7 of the crime list No. 4 of the annexed Table 3 of the crime list No. 3 of the annexed Table 3 of the crime No. 4 of the crime list of the annexed Table 4-7 of the crime list of the annexed Table 4-7 of the crime list of crimes and the violation of the Unfair Competition Prevention and Trade Secret Protection Act shall not be pronounced separately in the order of conviction.

Judges

Judges Cho Jong-ho

Note tin

1) The value of reliability test results does not need to be kept confidential in the event of a depository more favorable than a competitor, and it is advantageous to keep it confidential only in the case of a depository that is not good. Therefore, the fact that an information holder’s intent to keep it confidential is merely because it does not want to display any competition and is not because it constitutes a trade secret having independent economic value.