Defendant 1 and six others

Defendant 3 and one other and the prosecutor

Yielded lines

Law Firm Tae, Attorneys Jeon Jong-hun et al.

Seoul Central District Court Decision 2007Gohap1096 Decided July 25, 2008

All appeals by Defendants 3 and 4 and by the Prosecutor against the Defendants are dismissed.

1. Summary of grounds for appeal;

A. Defendant 3 (Defendant 1 of the Supreme Court’s judgment) and Defendant 4 (Defendant 2 of the Supreme Court’s judgment) defense counsel

(1) misunderstanding of facts or misapprehension of legal principles

(A) The withdrawal date of Defendant 3 and 4 was written on November 30, 202 on the document, but in substance, the said Defendants’ performance of the duties of Nonindicted Company 1 is a transfer. Therefore, the said Defendants’ performance of their personal duties on November 30, 2002 is merely limited to the possession of computers containing circuit drawings, parts list, Round manuals, test manuals, software, and specifications (hereinafter “technical data in this case”) at the time of the original adjudication, and at the time, the said Defendants cannot be the subject of the crime of occupational breach of trust. Meanwhile, since the duty of confidentiality stipulated in the service regulations of Nonindicted Company 1, which was merely a civil duty, and even if the said Defendants violated the duty of confidentiality, it is nothing more than a default of duty of the said Defendants. Nevertheless, the lower court determined that the said Defendants were the subject of the crime of occupational breach of trust at the time of taking out the computer.

(B) In addition, the above Defendants decided to develop A/S and additional products upon Nonindicted Party 2’s request, and agreed to perform the above tasks and used computers containing Nonindicted Party 2’s consent. Accordingly, the above Defendants did not have any awareness that their actions violate the intent of Nonindicted Company 1, and therefore, there was no criminal intent for breach of trust. Nevertheless, the lower court determined that the above Defendants carried out the technical data of this case without permission, based on Nonindicted Party 2, etc.’s statement without credibility, thereby causing mistake of facts by determining that the said Defendants carried out the technical data of this case without permission.

(C) Meanwhile, from August 202, 2002, Nonindicted Co. 1 decided to waive the plastic business, had the relevant employees transfer to another company, and did not establish an employee recruitment plan, and Nonindicted Co. 2 expressed his intent to suspend the urbial business several times in public. Therefore, even if the above Defendants developed the “BT10J product” using the instant technical data, Nonindicted Co. 1 was in fact suspended production of the pertinent product at that time, so there was no risk that the said Defendants’ profit would have been reduced due to the said Defendants’ act, and there was no possibility that the said Defendants would have committed a breach of trust in relation to the occurrence of damages to Nonindicted Co. 1. Nevertheless, the lower court erred in determining otherwise.

(2) Unreasonable sentencing

Even if the charge of occupational breach of trust against Defendant 3 and 4 is found guilty, in light of the fact that the above Defendants were the first offender, and that there was no actual damage to Nonindicted Co. 1, and the above Defendants did not suffer any profit, the sentence of the lower court, which sentenced the above Defendants to the suspended sentence of two years for a year of imprisonment, is too heavy.

(b) Prosecutors;

(1) misunderstanding of facts or misunderstanding of legal principles (as to the defendant)

(A) Part of the Defendants’ violation of the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter “Unfair Competition Prevention Act”)

(1) On November 30, 2002, the part concerning the divulgence of trade secrets.

The date of establishment of Nonindicted Co. 3 was November 29, 2002 on the company registry, but it was actually established and operated by the company from October 2002. The product development appears to have been completed on or around November 2002 or around December 12 of the same year. Since the leakage of trade secrets was done prior to the product development, the above Defendants’ trade secrets leakage was clearly done prior to November 30, 202, the judgment below that determined otherwise is unreasonable.

(2) The portion concerning the use of trade secrets around September 204

The meaning of Article 2 of the Addenda to the Amendment of the Unfair Competition Prevention Act (Act No. 7095 of Jan. 20, 2004) does not purport to apply the previous provision to the person who committed an act contrary to the law prior to the enforcement of this Act, and to determine the sentence, or not to exempt the person who committed an act newly violating the amended Act after the enforcement of the amended Act from the punishment. Since the leakage and use are different from each other, the applicable Act should be prescribed at the time of each act. The time when the "use" of trade secrets as stated in the facts charged was made is around September 2004, and the time when the "use" was made is in accordance with Article 18 (2) of the former Unfair Competition Prevention Act (amended by Act No. 7095 of Jan. 20, 200) which was in force at the time of the enactment of the amended Act. Thus, the judgment below which judged otherwise is unfair even if the defendants' act constitutes a criminal act infringing trade secrets.

(B) The part on occupational breach of trust of Defendant 1, 2, 5, 6, and 7

The lower court determined that there was no evidence to acknowledge that Defendant 1, 2, 5, 6, and 7 had instigated or actively participated in the act of occupational breach of trust by Defendant 3 and 4, who is an agent of the crime of occupational breach of trust. However, Defendant 1, 2, 5, 6, and 7 actively participated in the act of breach of trust by actively participating in the entire process of the establishment, removal, use, and development, sale, etc. of the trade secret of Nonindicted Incorporated Company 3, from the beginning to the end. Thus, the lower court’s aforementioned determination was erroneous.

(2) Unreasonable sentencing (as to Defendant 3 and 4)

In light of the fact that Defendant 3 and 4 carried out CDs or computers containing almost all the trade secrets of Nonindicted Co. 1, the victim, and the trade secrets of Nonindicted Co. 1, the development of the trade secrets of Nonindicted Co. 1, the development of the trade secrets of Nonindicted Co. 1, the development of the technology near 10 billion won, the fact that Nonindicted Co. 1, a criminal act of the said Defendants led to a situation that no longer runs a business is possible, and that the said Defendants took unfair profits exceeding the amount of less than a million won which is less than the amount of less than the amount of less than the amount of less than the amount of less than the amount of less than the infringement of trade secrets, the sentence of the court below that sentenced

2. Determination:

A. As to the assertion of mistake of facts or misapprehension of legal principles by Defendant 3 and 4 counsel

(1) According to the evidence duly examined and adopted by the court below, it can be recognized that the service regulations of the non-indicted 1 corporation provide that "An employee shall not leak, disclose, or spread any confidential information developed or obtained while on duty, or use it for any other purpose without the company's written consent, even if on duty or even thereafter," the employees of the non-indicted 1 corporation were aware of all the facts that the research institute's data or technology stored in the computer could cause damage to the non-indicted 1 corporation if disclosed to the outside. According to such factual relations and employment contracts or the principle of good faith, the defendant 3 and 4 shall be deemed to have a duty not to remove the confidential information or major business assets of the non-indicted 1 corporation for a considerable period of time after his/her retirement or resignation, and such duty is based on a fiduciary relationship between the company and its employees, and thus cannot be deemed to have been limited to a simple civil duty (see Supreme Court Decision 2006Do9089, Apr. 24, 2008).

(2) According to the records, the statements made by Nonindicted 2, Nonindicted 4, and Nonindicted 5 of the director of the accounting division of Nonindicted 1, and Nonindicted 1, regarding the background of Defendant 4’s release of computers are inconsistent with each other in detail, but it seems that the statements made on the preceding case for a long time. Nonindicted 2 consented to the removal of the foregoing Defendant’s technical data from the teletype terminal that have been developed by investing funds for a long time in Nonindicted 1, it is against the rule of experience. The above statements are consistent with the fact that Defendant 4 attempted to retire with a computer containing the teletype device data, and Nonindicted 2 instructed Defendant 4 to remove the company’s data through Nonindicted 4, but it was consistent with the fact that Defendant 4 retired from the computer without removing such data, and thus, it cannot be concluded that the above Defendants were released from the above teletype device’s technical data without the consent of Nonindicted 2. Meanwhile, according to the records, it is not possible to conclude that the above Defendants were subject to the aforementioned Defendants’ subsequent consent to the removal of the teletype.

(3) According to the evidence duly examined and adopted by the lower court, Nonindicted Co. 1 could be recognized that Nonindicted Co. 2 had produced “Non-Indicted Co. 1, 200, 100, using the pertinent data of Nonindicted Co. 1, 200. Nonindicted Co. 1, 200, up to March 200, Non-Indicted. 2, Non-Indicted Co. 1, 200, Non-Indicted Co. 1, 200, Non-Indicted Co. 1, 200, and Non-Indicted Co. 1, 200, Non-Indicted Co. 1, 200, and Non-Indicted Co. 2, Ltd., Ltd., Non-Indicted Co. 1, 200, and Non-Indicted Co. 1, 200, 300,000, 100,0000,000,000 won.”

(4) Therefore, the lower judgment that found the Defendant guilty of this part of the facts charged cannot be deemed to have erred by mistake of facts or by misapprehending the legal doctrine as alleged in the grounds of appeal

B. As to the prosecutor's assertion of mistake or misapprehension of legal principles

(1) The defendants' violation of the Unfair Competition Prevention Act

(A) The original charge part

① Prior to the determination on the argument in the grounds of appeal, the issue is first whether the technical data of this case constitutes the trade secret of Nonindicted Company 1 as stated in the facts charged. As such, the term “trade secret” under Article 2 subparag. 2 of the Unfair Competition Prevention Act means the methods of production and sale, and other technical and managerial information useful for business activities, which are not known publicly, and have independent economic value.

② Accordingly, according to the records as to whether the instant technical data has an independent economic value, Nonindicted Company 1’s chip-1’s technological progress is the most technological progress among the tele-burps. From March 202, 1-Mobiss, which were released for the export of Japan, i.e., GPS and the customer center of the telecommunications company, and the remote location verification, remotely control, burging, and burging and turging function of the i-marging and burging equipment, but the 1-Maburg-2’s patent application was already rejected for the 19th anniversary of the i-Maburg’s production of the 2nd-19th anniversary of the 2ndic mobile device’s chip’s chip’s chips’s chip-1’s chips’ chip-1’s chip-1’s chip-1’s chip-2 digital device.

(3) Furthermore, “defensive by considerable effort” means that information is indicated or notified to Nonindicted Company 1 as confidential, and it is objectively recognizable that the information is maintained and managed as confidential by persons access to such information, or persons access to such information, etc. (see Supreme Court Decision 2008Do3435, Jul. 10, 2008). Accordingly, regardless of the size of the company, employees are provided with a confidentiality pledge and, regardless of the size of the company, shall either indicate or notify its employees so that the information is classified as confidential, and shall not have an appropriate custodian for the purpose of preventing the leakage of information, and shall also have an adequate information on the medium in which the information is stored, such as a security system and media, and shall have no other person access to such information or measures restricting access to such information. According to the records, Nonindicted Company 1, as well as one’s own equipment to install a confidential or non-indicted corporation’s own equipment to the extent that it did not have been identified as confidential information, and shall not have any other information stored in the database or non-indicted.

④ Therefore, the technical data of this case cannot be seen as a trade secret under the Unfair Competition Prevention Act, and this part of the facts charged on this premise is a case where there is no proof of facts constituting a crime, and the conclusion of the court below which acquitted the facts charged is just, and it cannot be said that there is no error as

(B) As to the ancillary charges added at the trial

(1) Facts charged

Defendant 1, the representative director of Nonindicted Company 16, and the head of Nonindicted Company 2, who had worked as the representative director of Nonindicted Company 2, from around 197 to around 30, Defendant 2, while working for Nonindicted Company 1, Nonindicted Company 2, the head of Nonindicted Company 2, who had been in charge of Nonindicted Company 10, and the head of Nonindicted Company 2, who had been in charge of the installation of Nonindicted Company 1, 2, and the head of Nonindicted Company 2, who had been in charge of the installation of new telecommunications equipment 2, from around 197 to 20, using Nonindicted Company 1, Nonindicted Company 2, who had been in charge of the installation of new telecommunications equipment 2, which had been in charge of the new technology development for information exchange, mobile phone 2, and database 2, who had been in charge of the new technology development for Nonindicted Company 1, 100, and who had been in charge of the new technology development for Nonindicted Company 1, 200.

(2) Determination

This part of the facts charged also constitutes a case where there is no evidence of criminal facts, as long as the technical data of this case is recognized as trade secret, and thus there is no evidence of criminal facts, it should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, as seen above, the court below acquitted the original facts charged, which are the same as those of the conjunctive facts charged, and the prosecutor rejected the prosecutor's appeal and maintained the judgment of the court below, as seen in the above, it shall not be pronounced not guilty separately from the disposition (see Supreme Court Decision 84Do3068, Feb.

(2) The part on occupational breach of trust of Defendant 1, 2, 5, 6, and 7

(A) Defendant 1

① According to the records, Defendant 1’s introduction of Defendant 2: (a) exchanged a memorandum of understanding with Nonindicted Co. 1 on January 24, 2002; and (b) concluded a terminal supply contract on February 28, 2002, and sold a teletype terminal from Nonindicted Co. 1 to Japan; (c) terminated the contract on February 2003, when the problem occurred continuously because Nonindicted Co. 1’s products, Japanese vehicles, and service centers do not fit each other; (d) purchased BJ10 T device from Nonindicted Co. 3; and (e) around September 2004, it can be recognized that Defendant 1 owned shares by investing in Nonindicted Co. 3; and (e) in light of all the circumstances indicated in the records, such as these facts, it is recognized that the court below acquitted Defendant 1 on the ground that there is no reasonable evidence to acknowledge that Defendant 3 and 4, who was the executor of the crime of occupational breach of trust, has engaged in the act of breach of trust or actively engaged in such act.

② The evidence cited in the grounds of appeal that Defendant 1 was actively involved in Nonindicted Co. 3’s act of entering the Republic of Korea through financial support and work instruction from the beginning of the establishment of Nonindicted Co. 3. The testimony made by Nonindicted Co. 17 cannot be deemed credibility in light of the statement at the lower court’s court. The evidence cited in the grounds of appeal, i.e., Defendant 2’s prosecutorial statement that “at the office of Nonindicted Co. 3, around January 2003, the idea was expressed to Defendant 1,” and Defendant 3’s prosecutorial statement that “at the seat of the employee of Nonindicted Co. 1, who was operated by Nonindicted Co. 3, 6, Nonindicted Co. 10, Nonindicted Co. 4, and Nonindicted Co. 1, Nonindicted Co. 2, Nonindicted Co. 10, who was an employee of Nonindicted Co. 3, who was an employee of Nonindicted Co. 6 Co., Ltd., Ltd., made an order to purchase Nonindicted Co. 6’s products from Nonindicted Co. 1, Ltd. 2, Ltd. 3’s.

③ Therefore, the lower judgment that acquitted the Defendant of this part of the facts charged cannot be deemed to have erred as alleged in the grounds of appeal.

(B) Defendant 2

In light of the records, the court below found Defendant 2 to be legitimate in finding the fact that Defendant 2 did not participate in the technical part such as the development of the teletype terminal, and found Defendant 2 not guilty of this part of the facts charged on the ground that it did not change solely on the ground that Defendant 2 was allocated a large number of shares of Nonindicted Co. 3, as alleged in the grounds of appeal. Thus, the court below did not err by misapprehending the legal principles as alleged in the grounds of appeal.

(C) Defendant 5

Defendant 5, at the prosecutor's office, thought that “self-consceptic business was proposed by Defendant 4 during October 2002 to be defective, and that the same business with Nonindicted Co. 1 was developed with the technology acquired from Nonindicted Co. 1, because it was the same as that of Nonindicted Co. 1, Defendant 5, who stated that Nonindicted Co. 2 should work at the university venture business team, but this is so good that the company's atmosphere at the time is well-grounded, and this is said to be so doing.” However, the statement alone is insufficient to readily conclude that Defendant 5 actively participated in the act of breach of trust committed by Defendant 3 and 4, and there is no other evidence to prove that this part of the grounds for appeal is without merit.

(D) Defendant 6, 7

The circumstances alleged in the grounds of appeal, i.e., Defendant 6 actively participated in the development of “BT10J”, which is a teleact terminal at Nonindicted Co. 3, and Defendant 6 knew that Defendant 3 had data stored in the computer while developing the product at Nonindicted Co. 3, while Defendant 3 was working in Nonindicted Co. 1, and Defendant 7 did not accurately express the grounds of resignation at the time of withdrawal from Nonindicted Co. 1’s company, and Defendant 7 did not accurately inform Defendant 3 of the reason of resignation. After the withdrawal from the company, Defendant 5, Defendant 6 and 7 had already been employed in several companies, and had been employed in the same teleactact terminal business, and it is insufficient to conclude that Defendant 6 and 7 had instigated or actively participated in the act of breach of trust by Defendant 3 and 4, and there is no other evidence to support this part of the facts charged, and there is no error in the misapprehension of the grounds of appeal, as otherwise alleged in the grounds of appeal.

C. As to both parties’ assertion of unfair sentencing

Defendant 3 and 4 did not have criminal power; the extent of damage inflicted upon Nonindicted Co. 1 and the profits gained by the above Defendants, as well as various matters prescribed in Article 51 of the Criminal Act, which are conditions for sentencing, such as the above Defendants’ age, character and conduct, and environment, as shown in the records and arguments of this case, considering all of the circumstances alleged in each of the grounds for appeal by the defense counsel and the prosecutor of the above Defendants, the sentence of suspension of execution is deemed appropriate for one year of imprisonment with prison labor imposed by the above Defendants, and it cannot be deemed that the above Defendants are too heavy or too unreasonable. Thus, the grounds for appeal in this part of the grounds for appeal are without merit.

3. Conclusion

Therefore, since the appeal by the defendant 3 and 4 and the appeal by the prosecutor against the defendants is without merit, all of them are dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Jeong Young-chul (Presiding Judge)