In a case where a person working for the so-called “hedging” specialized company and stored and leaked a human resources information contained in the company’s database in his/her own USB joint box before retirement, the case holding that the above information constitutes “trade secret” as prescribed by the Unfair Competition Prevention and Trade Secret Protection Act.

In a case where the defendant working for the so-called "H-Hunting" specialized company stored and leaked human resources information, such as personal history and personal information, contained in the company's database (DB), before his/her retirement, the case held that the information acquired and used by the defendant constitutes "trade secrets" under the Unfair Competition Prevention and Trade Secret Protection Act, on the grounds that the data obtained and used by the representative of the company includes a large number of job seekers' resumes, etc. for each business sector, and that the information obtained through personal connection, etc. are core information for the business of the H-Hunting company, and that substantial business losses may occur if such data are exceeded the competitor, and that the above human resources information DB regularly collected and managed the company's trade secret management regulations against its employees while comprehensively taking into account the fact that the representative of the company kept and managed it in his/her own set and submitted a written pledge to comply with the company's trade secret management regulations, and that the defendant also was also employed and retired.

Articles 2 subparag. 2 and 18(2) of the Unfair Competition Prevention and Trade Secret Protection Act

Supreme Court Decision 2006Do7916 Decided July 9, 2009 (Gong2009Ha, 1362) Supreme Court Decision 2008Do3436 Decided September 10, 2009 (Gong2009Ha, 1904) Supreme Court Decision 2007Do6772 Decided October 29, 2009

Defendant

Defendant and Prosecutor

Maximumization

Attorney Ha Young-young

Busan District Court Decision 2009Dadan1301 decided March 3, 2010

All appeals by the defendant and the prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendant’s assertion of misapprehension of legal principle

Although the defendant's defense counsel did not constitute trade secret as provided by the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter "Unfair Competition Prevention Act"), the defendant's personal history and personal information acquired and used by the defendant does not constitute trade secret as provided by the Unfair Competition Prevention and Trade Secret Protection Act, the court below erred by misapprehending the legal principles as to the Unfair Competition Prevention Act, which affected the conclusion

B. Prosecutor’s assertion of unreasonable sentencing

The prosecutor asserts that the sentence of the court below against the defendant (one year of imprisonment with prison labor for four months) is too unhued and unreasonable.

2. Determination

A. Judgment on the misapprehension of the legal principle of the defendant

The term "trade secret" under Article 2 subparagraph 2 of the Unfair Competition Prevention and Trade Secret Protection Act refers to any production method, sale method, and other technical or managerial information useful for business activities, which is not known to the public and has an independent economic value, and has been maintained in secret by considerable effort. Here, the term "no known information" refers to any information that is not widely known to many and unspecified persons because it is not known to the general public, such as a publication, etc., and it refers to the information that cannot be obtained from the holder, and "the holder of the information has an independent economic value" means that the holder of the information can obtain competition benefits from the competitor or requires considerable expenses or effort for the acquisition or development of the information through the use of the information, and "the information shall be maintained in secret by considerable effort" means any indication or notification that the information is confidential, and it refers to a situation in which it is objectively recognizable that the information has been maintained and managed as secret, such as restricting access to the information or imposing access to the person who has access to the information, or imposing a duty to keep secret on the person who has access the information (see Supreme Court Decision 2007Do767.

According to evidence duly adopted and examined by the court below, ○○ Company: (a) was a company specializing in the so-called “HE”, which recommended experts from each enterprise and public institution and provides advice at the time of employment of human resources of the company, by establishing a database on human resources of the executives in Busan, South, and North Korea; (b) the representative Nonindicted Party 1 and its employees collected through direct and indirect contact for ten years, including personal records, academic background, career, medical history, qualifications, employment circumstances, employment conditions, and other personal information of the Defendant’s company; (c) the Defendant did not seek advice on the employment of the Defendant based on the total contact with the Defendant’s employees to obtain information that could not have been used by the Defendant’s employees, and (d) the Defendant’s personal information that could not have been used by the Defendant’s employees, including the above information available to him/her at the time of their employment, and (d) the Defendant was working on behalf of the ○ Company from May 6, 2007 to May 13, 2009.

B. Judgment on the prosecutor's assertion of unfair sentencing

On the other hand, the defendant's refusal of the facts charged in this case does not seem to have been done, and the defendant disclosed a written oath that he would not leak any trade secret while in office and at the time of retirement, and used the above information obtained by being employed by the same company for more than two months after retirement, and it is not very good that the crime is committed, and it is reasonable to strictly punish the defendant without agreement with the victim. However, in full view of all other circumstances that led to the crime in this case, the defendant is the first offender, and all other circumstances that form the conditions for sentencing as shown in the records, such as the circumstance and contents of the crime in this case, the circumstances after the crime in this case, the defendant's age, character and conduct, family relationship, occupation, etc., the prosecutor's assertion of unfair sentencing is without merit.

3. Conclusion

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

Judges Yoon-won (Presiding Judge)