2018No777 Violation of Occupational Breach of Trust, Violation of the Act on Prevention of and Protection of Industrial Technology

A

Both parties

Freeboard (prosecutions) and a public trial under the jurisdiction of the Republic of Korea

Law Firm LBBS Partners

Attorney Kim Jong-won, Counsel for defendant-appellant

Suwon District Court Decision 2016Gohap6150 Decided January 12, 2018

October 12, 2018

All appeals filed by the defendant and prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendant:

The punishment of the court below (one year of imprisonment with prison labor for six months, one year of suspended execution) is too unreasonable.

(b) Prosecutors;

1) Mistake of facts (not guilty part)

Comprehensively taking account of the facts acknowledged by the lower court and the following circumstances, the fact that the Defendant leaked industrial technology to B Co., Ltd. (hereinafter referred to as “victim”) for an unlawful purpose. Moreover, the Defendant violated the regulations and thereby neglecting a fiduciary relationship with the victimized Company by discharging technical data (hereinafter referred to as “technical data of this case”) recorded in the facts charged. Nevertheless, the lower court found the Defendant not guilty of the violation of the Act on Prevention and Protection of Divulgence of Industrial Technology among the facts charged of this case and the violation of the occupational breach of trust due to the divulgence of trade secrets. In so doing, the lower court erred by misapprehending the fact, thereby adversely affecting the conclusion

A) The Defendant had a plan to resign from employment in the victimized Company and contacted with the Hague Hunter. From March 2016, the Defendant contacted with E and AH, etc., the Hague Hunter, and in particular, the EEC actively contacted with the Defendant, as he thought of the severance from employment to a related company including a foreign company, and as he thought the severance from employment to the relevant company. The mermo prepared by the Defendant at the time, there is a content that the H Hunter will spread and make a resume.

Although the defendant was promoted to the former, he was transferred to the E Business Department, which is a non-humanistic department, and it seems that he actively planned to resign from his job.

B) Although there is no particular health problem, the Defendant participated in the meeting of self-management council on May 2016. Around the time when the victimized company identified the reason, it is difficult for the victimized company to normally work due to lack of body, and the Defendant submitted a written diagnosis and requested sick treatment by asserting that it does not have any stress continuously received. However, according to the metaf prepared by the Defendant at the time, it would be possible to create a study on symptoms that may end to the spirit (the reason why they do not do so). Accordingly, it is confirmed that the Defendant planned a false sick person.

C) The Defendant leaked the technical data of this case in an abnormal manner in violation of the security rules of the victimized company. According to the security rules of the victimized company, extreme documents are unable to be taken out, the external documents are subject to approval by the head of the department, and the main parts should be immediately disposed of and discarded immediately after their use. The e-mail of the victimized company includes warning phrase, such as “influence of reproduction of relevant data”, and the Defendant would not leak the materials of the victimized company. The Defendant periodically prepared a written pledge. Nevertheless, the Defendant sent the pertinent technical data to employees by ordering them to output the data by e-mail. In particular, the Defendant leaked the data into the victimized company during the night time zone at the end of the week in which the Defendant was sick and leaked, and the Defendant did not have any data related to the victimized company. As can be seen, the Defendant’s act of leakage of the data in an abnormal manner in violation of the security rules of the victimized company is strongly justified.

D) The Defendant asserts that the instant technical data was leaked for the purpose of learning necessary for the work of the victimized company. However, the victimized company introduced the home-based service support system (hereinafter “RBS”) and there is no need to output the technical data for the purpose of learning. Furthermore, there is no relationship with the Defendant’s duties at the time as the materials of the C business division. Moreover, the instant technical data is the national core technology which is classified as extreme expenses in the victimized company, and thus, it is not allowed to take them out even for academic or non-profit purposes.

2) The part on the charge of unfair sentencing (the part on the charge)

The sentence of the court below is too unhued and unfair.

2. Judgment on the prosecutor's assertion of mistake of facts

A. Summary of this part of the facts charged

A person who was employed by the Defendant as a research team leader (the central processing device applied to F, non-meor, smartphone, etc.) of the damaged Company E (the central processing device applied to F, non-meothor, and smartphone, etc.) from around November 2008 to December 2015, the Defendant was employed as a research team leader (or commercial position) of the said Company C, and served as the head of the department (the management of defective or normal operation of products developed, produced, etc. from E department) in charge of the development, production, etc. of the damaged Company E division from around December 2013 to around December 2015.

From the time of joining the damaged company, the defendant has no prior knowledge of the company including information on research and development of the products acquired during the performance of duties or regardless of duties, technical information such as computer programs, management information, customer information, and all other information and documents that the company intends to protect, but has independent economic value.

As a result, even though a 'a pledge of protection, such as trade secrets, etc.' was prepared and submitted to the victimized company, 'a pledge of protection, such as trade secrets, etc. with the content that it will not be copied, reproduced, stored, facsimileed, or stored, disclosed, or used inside and outside of the company for any reason, for any reason, the technical or managerial information of the victimized company kept confidential by considerable efforts, or that it will not be used to divulge, disclose, or use it to third parties, etc., for any reason, the injured company would not use it for departure.

No person who has a duty to maintain confidentiality of industrial technology, such as executives and employees of an institution in possession of industrial technology, shall divulge industrial technology for the purpose of obtaining an unjust benefit or causing damage to an institution possessing industrial technology, use or disclose the divulged industrial technology, or use it by a third party.

Nevertheless, the defendant prepared to leave his job to a competitor and used it on June 2016. At the office of the E-Quality Team of the sixth floor of the 6th century, the defendant did not use the above 3th anniversary of the company's economic advantage from the 6th anniversary of the fact that it did not use the 6th anniversary of the company's trade secret development process, such as the 3th anniversary of the fact that it did not use the 3th anniversary of the 6th anniversary of the fact that the 6th anniversary of the fact that it did not use the 6th anniversary of the company's economic advantage, the defendant's contents of the 3th anniversary of the 3th anniversary of the fact that it did not use the 1st century's trade secret development process, such as WP manufacturing process, X and Y, which are the main product of the damaged company's industrial technology, such as the 3th anniversary of the 1st century's new technology development process or new technology development order (the 3th anniversary of the 3th century's new technology development process.

B. Judgment of the court below

The court below acknowledged facts based on the evidence duly adopted and examined by the court below, and found the defendant guilty of the violation of the Act on Prevention of Divulgence and Protection of Industrial Technology and the violation of occupational breach of trust due to the divulgence of industrial technology and the divulgence of trade secrets among the facts charged in this case on the ground that ① the defendant's act of taking industrial technology data in this case (hereinafter "the act of taking industrial technology in this case") falls under the "discharge of industrial technology" as provided in Article 14 subparagraph 2 of the Act on Prevention of Divulgence and Protection of Industrial Technology; ② technical data in this case fall under the "industrial technology" as provided in the above Act; ③ However, according to the following circumstances, the above evidence alone is insufficient to recognize the "unlawful purpose" and "an intention of occupational breach of trust" as to the defendant's act of taking industrial technology in this case due to the leakage of industrial technology data in this case.

1) As to the Defendant’s assertion that materials at the time of work of CF 1 were released for the purpose of public study, Q, AI, AJ, etc., which are executives and employees of CF overall group, should not be said to have been removed for the purpose of public study for the performance of the EF team’s quality management. However, according to the fact that the damaged company, as the president of CF overall group and E business division, operated the CF group’s manufacturing competition meeting to share know-how and remove it from the EM team in accordance with the 2014, R testified testified that there were only technical assistance from the EM team to the EM team in the 1st century, and conducted research related to semiconductors at universities and colleges, which are different from the 1st century’s manufacturing and development of semiconductors, even if it is not related to semiconductors at the present, it is the basic principles of the EM system that are different from those of the EM team’s manufacturing and development of semiconductors.

2) The Defendant, while sick, issued instructions related to the quality team employees by using the company’s e-mail (the testimony of the original witness P), and the Defendant would be general and desirable to concentrate on treatment and recuperation without using the nethy in the workplace during sick leave. However, it would be difficult to do so and it would be possible to enter the same fee or his subordinate employees into contact with them to have an unsatisfyed and instructed them, or to have an unsatisfyed and unsatisfyed to have an unsatisfyed, if it is not a state to the extent that they could not be said to have any unsatisfy.

3) It is doubtful that the Defendant attempted to leave his previous job, or that the Defendant was in contact with the Had Hunter, but it appears that it could be accumulated with the Had Hunter in advance to prepare for the time of retirement as a member of the company going at the monthly and at the workplace. There is no evidence to deem that the contact between the Defendant and AH was continued after the lapse of one time, or that there was a concrete discussion about the severance. There was no evidence to prove that the materials of the victimized company, which the Defendant had kept in his house, were put to a third party for any other purpose, regardless of the reason for the severance from employment.

4) In light of the fact that the Defendant laid down a document scrap at the home and discarded the material that was no longer necessary after the review, it seems that at least there was a sense that the material should not be known to a third party other than the Defendant or the victimized company’s relevant officers and employees.

5) If the act of leakage of a security site printed out of technical data was conducted at a specific point or in a short period, it may be suspected that the Defendant carried out technical data by cutting away the gap where security level is boomed compared to the other illegal purpose. However, in light of the fact that the Defendant’s act of printing out the data at the office and breaking out the data, and then continued from 2009 to July 2016, it is difficult to deem that it was conducted for the purpose of use in departure from employment.

6) In the injured company, the defendant alleged that the defendant's meta-type (Evidence No. 483 pages) was released from the victimized company by dividing this material from the damaged company to six months in advance by category, but the defendant's assertion that the defendant's appearance and evidence No. 1 (Evidence No. 1 of the defendant's appearance) were carried out by dividing the period of sick time in order to study the material brought by the defendant to his house.

7) Since the e-mail of the victim company inside the e-mail automatically deleted two weeks after the receipt, it seems necessary for the Defendant to store, output, and keep the received e-mail in the PC for business purposes. On August 1, 2016, the Defendant sent the e-mail to P and sent the e-mail to P, and sent the e-mail to P, and sent the e-mail so as to request the output of the e-mail to be stored in the PC for business purposes. As such, the received e-mail was deleted after two weeks from the point of view, the Defendant instructed the Defendant again to change the storage and output of the e-mail again

8) The Information and Security Regulations of the victimized Company apply very thoroughly to all officers and employees, and it is impossible for the victimized Company to remove a large number of materials such as the Defendant to the exclusion from the company. If the Defendant committed such act, the Defendant stated that he was taken out maliciously using the permission points of the security screening, but the Defendant did not answer how much of the Defendant could take out the technical data. If the security screening is so thoroughly, the security personnel N, who was in charge of the security screening of the entertainment establishment, was unable to answer how much of the Defendant could take out the technical data. The security personnel, who was in charge of the vehicle screening, was a simple case to the high-ranking officer at the time of the vehicle inspection. The security personnel testified that the number and the face of the officers were left out of the vehicle, and that the officers were removed from the vehicle, and that the Defendant did not take out and implement the precise inspection. In light of this, unlike the regulations on the security screening of the victimized Company, the Defendant did not have any specific data that could be taken out in bad faith or without any restriction.

9) The Defendant used the security paper brought to the house for which the review has become unnecessary after the completion of the review on the back of the security paper, in which the writing corresponding to the personal miscellaneous life, such as the idea of leaving the house at that time, or a life plan, was filled up, and attached a mersh containing any content similar thereto in front of the book. In that context, whether the book is “whether or not the book is later helpful?” Only the writing or meal time called “Dap, Dap, which does not waste time,” which does not perform unnecessary activities, and there is a little error that the Defendant did not carry out any unnecessary activities, and sent to his family or sent out all of the books except for the time necessary for religious life. According to the result of the examination on the seized materials by the lower court, it appears that the security paper seized from the Defendant’s house was actually white or back, and then, at that time, it appears that the Defendant’s appearance did not seem to have been disclosed to such a third party.

10) It is a separate issue whether the Defendant’s act of taking out this case without considering the Defendant’s security awareness is insufficient and whether the Defendant carried out data with unlawful purposes, even though it is recognized that the Defendant brought the damaged company into the house without the approval procedure, in violation of the provisions of the victimized company, materials pertaining to trade secrets of the victimized company.

C. Judgment of the court below

1) Article 14 Subparag. 2 of the Industrial Technology Protection Act prohibits a person who has a duty to maintain confidentiality of industrial technology from divulging industrial technology for the purpose of obtaining unjust enrichment or causing damage to an institution possessing industrial technology, or using or disclosing industrial technology leaked to the institution possessing industrial technology, or allowing a third party to use such industrial technology. A person who violates this prohibition is punished pursuant to Article 36(2) of the same Act. This is an additional crime purpose of "the purpose of obtaining unjust enrichment or causing damage to an institution possessing industrial technology." Since the prosecutor bears the burden of proving the facts constituting the elements of a crime prosecuted in a criminal trial, the prosecutor must prove that "the purpose of obtaining unjust enrichment or causing damage to the institution possessing industrial technology is "the purpose of obtaining unjust enrichment or causing damage to the institution possessing industrial technology" (see Supreme Court Decision 2015Do464, Jul. 12, 2018).

Meanwhile, in order to establish the crime of occupational breach of trust, there should be subjective requirements such as recognizing the violation of duties and recognizing that the person himself/herself or a third party acquires the benefit and thereby causes damage to the person himself/herself, i.e., intent in breach of trust. In a case where the defendant denies the criminal intent in breach of trust, the facts constituting the subjective element of breach of trust have to be proved by the method of proving indirect facts having considerable relevance with the criminal intent due to the nature of the object. In such a case, what constitutes indirect facts having considerable relevance should be reasonably determined based on the ordinary empirical rule (see, e.g., Supreme Court Decision 2014Do11876, Jun. 23, 2016).

2) In order to be found guilty of each charge in light of the above legal principles, the Defendant’s technical data of this case, including national core technology, with the intention of obtaining unjust profits or causing damage to the victimized company, or obtained the amount of property benefits equivalent to the market exchange price due to such act as to the research, development, etc. of trade secrets, and should be proved to the extent that there is no reasonable doubt that there was an intention or intention to inflict property damage equivalent to the amount that may arise from the increase in supply of trade secrets and the strengthening of competitive competitiveness.

Therefore, a thorough examination of the evidence duly adopted and examined by the court below in light of the records can acknowledge the facts and the above circumstances presented by the court below (However, the court below's 8th 14th 'general search' seems to be the 'detailed search'). Further, considering the following circumstances that can be recognized by the evidence duly adopted and investigated by the court below and the court below, even if the evidence submitted by the prosecutor is additionally examined, the evidence submitted by the prosecutor alone cannot be deemed to have been proven to the extent that there is no reasonable doubt that the defendant had the purpose of obtaining the above improper profits or intent to commit a breach of trust at the time of shipping the technical data of this case into a house. Accordingly, the above judgment of the court below is just and acceptable, and there is no error of law of mistake of facts as pointed out by the prosecutor. Accordingly, this part of the prosecutor's assertion is without merit.

A) In addition to only one met with AH introduced from friendly AG, the Defendant contacted with the EC, a director of the H-rating company, on February 2016, but did not actually meet the request. Since then, the Defendant appears to have given and received contact with AH, or did not have any special details even in e-mail of AH and EC (Evidence No. 1221 of the record of evidence). There was no other evidence that the Defendant had contacted with other hedging or competitors, and there was no evidence to support the Defendant’s specific preparation for departure from employment, such as the resume, even if the Defendant moved to the E-business department on or around December 2015, 2015, it is difficult to readily conclude that there was a need for departure from employment due to the fact that there was a promotion by electric affairs.

B) Around May 2, 2016, the Defendant was absent from the management conference of the E Ministry of Health and Welfare on the ground of health. Around May 12, 2016, the Defendant was transferred to an emergency room using a drum certificate. On or around June 1, 2016, the Defendant received a diagnosis from the FC Hospital that a concentrated treatment is necessary for 3 to 4 months in an environment without stress due to low-quality skills. The Defendant was provided with medical treatment in the internal and mental health department, etc. during the period of sick period (Evidence 2-1 through 7), and the Defendant received medical treatment from the affected company after having multiple interviews with the executive officers and employees of the E business team, including the team leader of the EN team of the victimized company, and obtained approval for the Defendant’s request for medical treatment or consultation on several occasions, and it is difficult to view the Defendant’s request for medical treatment and consultation to have taken the part of the Defendant’s work. Rather, it is difficult to view the Defendant’s request that the Defendant’s medical personnel treatment and consultation were made more reasonable.

C) It is recognized that the Defendant carried out materials that could not be carried out due to the violation of the security rules of the damaged company or did not go through the procedures necessary for the removal of materials. However, according to the testimony of Q, AM’s testimony, and FD’s testimony, the Defendant, who is an employee of the victimized company, was also entitled to approval of the security department after he/she voluntarily approved the removal of materials. Furthermore, according to the testimony of the judgment of the court below of NN of the security personnel who was in charge of the security screening of the entertainment workplace, the Defendant was given instructions and conducted a special close inspection, and ordinarily, the officer did not conduct a close inspection. In fact, the Defendant was constantly carried out from the damaged company since 2009 to the point of time, but did not seem to have violated the security rules. In light of the contents of the security rules and the status of the security screening of the officers, it is difficult to consider the Defendant’s aforementioned removal of materials itself as an important ground for the act of outflow or breach of trust as stated in this part of the facts charged.

라) 이 사건 공소사실 중 2016. 5.경 및 2016. 6.경의 각 반출행위의 경우 기록상 피고인의 병가 시기 이전인 것으로 보인다. 또한 이 사건 공소사실 중 2016. 7.경의 반출행위는 병가 중 주말의 야간 시간대에 이루어진 것이라는 점에서 피해 회사의 의심을 샀으나, 반출된 자료 대부분이 병가 중에 받은 사내 메일을 본인이 출력한 것이라는 점에서, 이메일의 보관기간이 지나기 전에 출력하여 검토할 필요가 있었고 병가 중

In addition, the Defendant’s explanation that he/she had reached the night by taking full charge of his/her employees. At around 00:58 on July 30, 2016, the Defendant committed himself/herself with the damaged company even around 00:58, and the Defendant was found to have kept the materials of the victimized company in the close search of the vehicle. However, since the said materials were already output before several months, it is unclear whether the Defendant had kept the said materials on the vehicle to take them out of the vehicle at the time, and there was no prosecution therefor. In light of these circumstances, it is difficult to view the Defendant to take them out of the instant technical materials on the basis of the abnormal time zone of the damaged company’s security surveillance at night.

E) The considerable part of the technical data of this case was stored in the PC of the Defendant, or carried out by means of directly printing out or ordering the P to printing out the data received by e-mail. In the event of printing out the data of the damaged company, the date, place, and output is indicated at the bottom of the output. The first head of the output is stored in the system of the damaged company, along with the above output information, and the process of leakage is relatively easily confirmed. The Defendant, even after recovering the data of the damaged company from the precision search of the vehicle, up to August 5, 2016, up to the time when the investigation agency conducted search and seizure of the Defendant’s house, he stored the data, including the instant technical data, from the damaged company’s book, before and after the investigation agency carried out the Defendant’s house. Meanwhile, in view of the fact that the Defendant did not have access to the RBS with the NoP PC provided to the executive officer, it is difficult to view that the Defendant carried out the data in the same way as the Defendant did not take the data out of this case.

F) According to the testimony of each court below of the EX, the defendant, as well as the defendant, who had a school and worked together with the defendant, and worked for the victim company, the defendant appears to have been a habiter who had printed out of the ordinary data and has opened the course of study or used it in his work. According to the result of the evidence verification at the court below, it is confirmed that the defendant's considerable part of the technical data of this case contains the pen length, bottom, symbol, shot, etc. In this case, the possibility that the defendant carried out the technical data of this case in the form of output instead of reading the printed data in the screen of the RBS in order to smoothly review the data as a usual habit cannot be ruled out.

G) Some of the technical data of this case are C business division. However, in full view of the testimony of the injured company at the lower court by AI, R, professor K, each of the technical data of this case, and the statements in evidence Nos. 10 through 12, etc., it can be recognized that the main semiconductor and the non-main semiconductors can be used in a similar process and mass technology, and a similar equipment group can be used. Since the duties of D team and quality team are similar in that the work of the E business quality team should be minimized to minimize the defective product quality, it is also similar in that the Defendant used the C business division's previous work to refer to the work of the E business quality team. If the Defendant carried out the technical data of this case for the purpose of learning to refer to the work of the damaged company, even if it is not allowed to take out the technical data of this case for the purpose of learning under the security rules of the victimized company, it is difficult to view that the Defendant was aware of the act of taking out the technical data of this case as stated in the facts charged, or that the Defendant was aware of its own profit.

3. Determination on the assertion of unreasonable sentencing by the defendant and prosecutor

The circumstances that the defendant led to the confession of the crime, some of the amount of breach of trust are mixed with the characteristics of the business, deposit money equivalent to the amount of breach of trust on behalf of the damaged company, and there is no particular penalty other than the fine imposed due to the violation of the Road Traffic Act prior to the lapse of 20 years.

Meanwhile, the Defendant filed a false claim for considerable amount of occupational expenses by means of borrowing credit cards from subordinate employees under his command and supervision, etc. In light of the content of the crime, the method of the crime, and the degree of damage, etc., the Defendant’s act is disadvantageous to the Defendant.

In full view of the above circumstances and the Defendant’s age, character and conduct, environment, family relationship, motive and circumstance before and after the commission of the crime, etc., it is difficult to deem that the lower court’s punishment is too heavy or unreasonable.

Therefore, this part of the defendant and prosecutor's argument is without merit.

4. Conclusion

Therefore, since the defendant and prosecutor's appeal are without merit, all of them are dismissed under Article 364 (4) of the Criminal Procedure Act, and it is so decided as per Disposition (However, to the extent that there is no substantial disadvantage in guaranteeing the defendant's right of defense pursuant to Article 25 (1) of the Regulation on Criminal Procedure, the part of the criminal facts of the judgment of the court below which "the defendant directly approves" shall be corrected to "the person in charge of financial affairs".

The judge of the presiding judge;

Judges Cho Jong-soo

Judges Chak-young