[1] The specific degree of "trade secret" as stated in the facts charged in a violation of the Unfair Competition Prevention and Trade Secret Protection Act

[2] The meaning and requirements of "trade secret" under Article 2 subparagraph 2 of the former Unfair Competition Prevention and Trade Secret Protection Act

[3] The case holding that "grl file and technical data, which are technical information that imposes a duty of confidentiality on the Korea Railroad under a contract for purchase of procurement commodities, constitutes "trade secret" under the former Unfair Competition Prevention and Trade Secret Protection Act

[4] In a case where a trade secret acquired at the time of the enforcement of the former Unfair Competition Prevention and Trade Secret Protection Act is used unlawfully after the enforcement of the new law, whether it can be punished as a crime of unlawful use of the newly established trade secret (affirmative), and whether the trade secret subject to the above crime should be obtained unlawfully (negative)

[1] Even if the information alleged as "trade secret" is not written in detail in the facts charged in the violation of the Unfair Competition Prevention and Trade Secret Protection Act in question, it can be distinguished from other information, and if it does not interfere with the defendant's exercise of his/her right of defense, it does not affect the validity of the indictment.

[2] The term "trade secret" under Article 2 subparagraph 2 of the former Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 8767 of Dec. 21, 2007) refers to any production method, sale method, and other technical or managerial information useful for business activities, which are not known to the public and are maintained in secret by considerable effort. The term "not known to the public" refers to any information that cannot be obtained through a holder because it is not known to many and unspecified persons, such as where it is actual in the media of publications, etc., and "the holder of the information has an independent economic value" means that the owner of the information can benefit from competition against the competitor, or that considerable expenses or effort is needed for the acquisition or development of the information, and "the secret maintained in secret by considerable effort" means that the information is indicated or notified that it is a secret, and that the person subject to access to the information or the person subject to obligation to observe it is objectively recognizable and managed as a secret.

[3] The case holding that, in the purchase contract for the procurement commodities, the glock file and technical data, which are technical information that the duty of confidentiality, is imposed on the Korea National Railroad, are trade secrets under the former Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 8767 of Dec. 21, 2007), even if there exist the drawings management regulations of the Korea National Railroad that permit the withdrawal and perusal of drawings upon the request of the foreign government, and some of the data were released and perused several times, even if there are circumstances that the data were kept confidential by considerable effort of the holder of the trade secrets

[4] Article 18(2) of the former Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 7095 of Jan. 20, 2004) provides that "any person who acquires or uses trade secrets useful to the company or divulges them to a third party for the purpose of obtaining improper profits or causing damage to the company shall be punished by imprisonment with prison labor for not more than five years or by a fine equivalent to not less than two times but not more than ten times the pecuniary profit." Article 18(2) of the Addenda of the former Unfair Competition Prevention and Trade Secret Protection Act provides that "any person who acquires or uses trade secrets useful to the company for the purpose of acquiring or causing damage to the company shall be punished only by expanding the company's subject of punishment for infringement of trade secrets and that another person who violated the former provisions of Article 18(1) and (2) of the former Unfair Competition Prevention and Trade Secret Protection Act before the enforcement of the Act shall be punished only for the purpose of acquiring or using trade secrets with the premise that the former provisions of Article 18(1) and (2) of the Act should not be amended."

[1] Article 254 (4) of the Criminal Procedure Act, Article 2 subparagraph 2 of the Unfair Competition Prevention and Trade Secret Protection Act / [2] Article 2 subparagraph 2 of the former Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 8767 of Dec. 21, 2007) / [3] Article 2 subparagraph 2 of the former Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 8767 of Dec. 21, 2007) / [4] Article 18 (2) of the former Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 7095 of Jan. 204), Article 2 subparagraph 3 (a) and Article 18 (2) of the former Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 8767 of Dec. 21, 2007)

[1] [2] Supreme Court Decision 2006Do8278 Decided July 10, 2008 / [2] Supreme Court Decision 98Do4704 Decided March 12, 1999 (Gong1999Sang, 710) Supreme Court Decision 2002Da60610 Decided September 23, 2004 (Gong2004Ha, 1693), Supreme Court Decision 2005Do6223 Decided February 15, 2008 (Gong208Sang, 425) (Gong208Ha, 425) Supreme Court Decision 2008Do3435 Decided July 10, 2008 (Gong2008Ha, 1212)

Defendant 1 and seven others

Defendants

Attorneys Han Jin-jin et al.

Seoul Central District Court Decision 2005No3813 Decided October 25, 2006

All appeals are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the assertion that the facts charged are not specified

The purpose of Article 254(4) of the Criminal Procedure Act, which requires the statement of facts charged in the filing of a public prosecution, is to ensure the efficiency and swiftness of the trial by limiting the object of the trial to the court, and at the same time to facilitate the exercise of the defendant's right to defense by specifying the scope of defense. Thus, even if the information alleged as trade secrets in the facts charged of the violation of the Unfair Competition Prevention and Trade Secret Protection Act is not specified in detail in the facts charged of the violation of the Unfair Competition Prevention and Trade Secret Protection Act, it can be distinguished from other information, and if it does not interfere with the defendant's right to defense, it does not affect the validity of the public prosecution (see Supreme Court Decision 2006Do8278, Jul. 10, 2008).

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, the facts charged in this case revealed by Defendant 6, and the remaining Defendants stated the trade secret used by the Defendants as “the design drawing of the 160th class 160 vehicle 160 vehicle 160 vehicle 1.0 vehicle 1.0 vehicle 1.0 vehicle 1.0 vehicle 1.0 vehicle 1.0 vehicle 1,000 vehicle 1.0 vehicle 1,000 vehicle 1,000 vehicle 1

Therefore, it is justifiable for the lower court to have determined that the entry of the instant glock file was specified as a trade secret.

The court below did not err in the misapprehension of legal principles as to the specification of facts charged as alleged in the grounds of appeal.

2. As to the assertion that the trade secret is not trade secret

The term "trade secret" under Article 2 subparagraph 2 of the former Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 8767 of Dec. 21, 2007, hereinafter referred to as the "Act") means a production method, sale method, and other technical or managerial information useful for business activities, which are not known to many and unspecified persons by considerable effort and are maintained in secret by considerable effort. Here, "no known" means that the information is ordinarily impossible to obtain information without passing through its holder because it is not known to the general public, such as where it is actual in the media of publications, etc., and "in possession of independent economic value" means that the holder of the information can obtain competition benefits from competitors through the use of the information, or that considerable expenses or efforts are needed for the acquisition or development of the information, and "the information is maintained as secret by considerable effort" means that the information is indicated and notified as secret, and the access to the information is restricted by or managed in an objective manner that is limited to 200 persons subject to access or management of the information.

Examining the reasoning of the judgment below in light of the aforementioned legal principles and the records, since Article 29(1) of the General Conditions for the Purchase Contract imposing the duty of confidentiality by allowing the Korea Railroad Corporation and its general successor to disclose the technical information of the counter-party to the contract to obtain approval of the counter-party to the contract constitutes the purchase contract entered into between the non-party 1 corporation and the Korea Railroad, and it cannot be deemed as merely an example. Thus, the Korea Railroad Corporation has a duty of confidentiality regarding the instant files and technical data submitted by the non-indicted 1 corporation pursuant to the above contract terms, and the drawing management regulations of the Korea Railroad Corporation allow the non-indicted 1 corporation to obtain the delivery and perusal of the drawings at the request of the non-party 1 corporation to obtain the disclosure of the technical information of this case to the non-indicted 3 corporation, which is merely an administrative rule with only internal binding force within the Korea Railroad Corporation, and it cannot be deemed that the non-indicted 1 corporation made an explicit effort to use the technical information of this case to obtain and maintain the confidential data of this case and its inner data.

For the reasons indicated in its holding, it is justifiable for the lower court to have determined that the instant Capital Files and technical materials constituted trade secrets.

The court below did not err in the misapprehension of legal principles as to trade secrets, violation of the rules of evidence or incomplete hearing.

3. As to the assertion that the trade secret acquired at the time of the enforcement of the former Act cannot be punished for unlawful use after the enforcement of the new Act

Article 18(2) of the former Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 7095 of Jan. 20, 2004) provides that "any person who acquires or uses trade secrets useful to the company for the purpose of obtaining unjust profits, causing damage to the company, or divulges such secrets to a third party, shall be punished by imprisonment for not more than five years or by a fine not less than two times but not more than ten times the amount of profit on the property of the company." Article 18(2) of the Addenda of the former Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 7095 of Jan. 200) merely provides that "any person who violates the provisions of Article 18(1) and (2) of the former Act before this Act enters into force shall be punished only for the person who violated the provisions of Article 18(1) and (2) of the former Act prior to the enforcement of the Act." Thus, any person who acquired or used such secrets after the amendment shall be construed as unlawful.

The court below was justified in finding and punishing the remaining Defendants, other than Defendant 6, guilty of the unlawful use of the technical data of this case.

The court below did not err in violation of the principle of legality as alleged in the ground of appeal.

In addition, Article 18(2) of the amended Act only provides that "the act of acquiring and using trade secrets useful for the company for the purpose of gaining unjust profits or causing damage to the company," and there is no special restriction on the means and method of acquiring trade secrets, and therefore, there is no special restriction on the means and method of acquiring trade secrets, the argument in the grounds of appeal that the trade secrets subject to the crime of unlawful use of trade secrets is "acquisition by force, deception, threat, or any other unlawful means" under Article 2 subparagraph 3(a) of the Act is not

4. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)