[1] The elements to establish a crime of occupational breach of trust in a case where a company employee divulges the company's data to a competitor or removes it without permission for the purpose of using it for his own interest

[2] Whether the act of a company employee's lawful release of trade secrets or material business assets, but the act of failing to return or discard trade secrets to a competitor company or to use them for his/her own interest constitutes a crime of occupational breach of trust (affirmative)

[1] Articles 355(2) and 356 of the Criminal Act / [2] Articles 355(2) and 356 of the Criminal Act

[1] [2] Supreme Court Decision 2006Do9089 Decided April 24, 2008 (Gong2008Sang, 809), Supreme Court Decision 2008Do9433 Decided October 15, 2009 (Gong2009Ha, 1904) / [1] Supreme Court Decision 2010Do3043 Decided July 14, 201, Supreme Court Decision 2011Do3657 Decided June 28, 2012

Defendant 1 and two others

Prosecutor

Suwon District Court Decision 2015No599 decided October 22, 2015

The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

The grounds of appeal are examined.

1. Where an employee of the company removes the company’s material without permission for the purpose of divulging it to a competitor or using it for his own interest, if such material does not constitute a trade secret, and it cannot be generally obtained without permission from the holder because it is not open to many and unspecified persons, and the holder of the material is a considerable time, effort and expenses for the acquisition or development of the material and constitutes a major business asset to the extent that it can obtain competitive benefits from the competitor through the use of the material, this constitutes a crime of occupational breach of trust.

Meanwhile, even though a company employee’s lawful removal of trade secrets or material, which is a major business asset, and the act of removal does not constitute occupational breach of trust, if the company did not leak or destroy the trade secrets, etc. to the competitor company, or did not return or discard them for the purpose of using them for his own interest, such act constitutes occupational breach of trust (see, e.g., Supreme Court Decisions 2006Do9089, Apr. 24, 2008; 2010Do3043, Jul. 14, 2011).

2. On the grounds indicated in its reasoning, the first instance court rendered that each of the drawings No. 40, 41, 42, 45, 55, and 56 listed in the annexed list 1 of the judgment of the first instance are designed by the Japanese non-indicted 1, and thus, it is difficult to deem that the non-indicted 2 corporation (hereinafter “victim”) was a major business asset of the victimized company since it was provided by the non-indicted 1 company in Japan and stored them as they are, or the form of some documents was modified and stored, and thus, it is difficult to view that the evidence submitted by the prosecutor alone constitutes a major business asset of the victimized company. (2) The court below rejected the part of the facts charged against Defendant 1 and the evidence submitted by the prosecutor alone and rejected the contents asserted by Defendant 2 and Defendant 3, and it is difficult to deem that each of the documents listed in the annexed table 2 of the judgment of the first instance was proved to the extent that there is no reasonable doubt as to the major business asset of the victimized company. The lower court affirmed the judgment.

3. However, according to the reasoning of the first instance court and the lower court’s judgment and the evidence duly admitted, the following facts can be revealed.

A. (1) On March 2, 2009, Defendant 1 joined the damaged company as the design2 team vice head and served as the victimized company vice head on or around June 30, 2012, and entered Nonindicted Co. 3 (hereinafter “Nonindicted Co. 3”) on or around August 1, 2012 after withdrawal.

(2) On March 10, 2008, Defendant 2 joined the damaged company and served as the purchasing team vice head and became a member of the purchasing team. On June 30, 2012, Defendant 2 retired and entered Nonindicted Co. 3 around July 2, 2012.

(3) On July 6, 2009, Defendant 3 joined the victimized company and served as the head of the purchase team division. On August 31, 2012, Defendant 3 retired and entered Nonindicted Co. 3 around September 24, 2012.

B. Defendant 1 prepared a written oath that he/she will not unlawfully use or remove the company’s intellectual and physical property without the company’s consent while the victimized company is in office, and the Defendants, while withdrawing the victimized company, prepared a resignation letter, etc. that he/she would not use the acquired company’s technical or managerial information, but will not use it in the competitor company.

C. (1) On June 2012, Defendant 1: (a) requested Nonindicted 4, who had worked as a design2 team agent for the victimized company, to store and deliver all materials, such as equipment production drawings and specifications, held by the design2 team, to the North Korea; and (b) after the withdrawal from the office on July 2012, Defendant 1 received each of the above materials from Nonindicted 4 and kept them on a personal lapt, and stored them on a personal lapt.

(2) Defendant 2, while withdrawing from the injured company, continued to keep the personal external divers which store each material set forth in Nos. 2, 3, 5, and 12 of the above list of crimes, without returning or destroying it to the victimized company.

(3) Defendant 3, while withdrawing the victimized company, continued to keep the private USB, which stored each material set forth in Nos. 1, 4, 13, and 16 of the above list of crimes, even after leaving the damaged company, without returning or destroying it to the victimized company.

(4) After joining Nonindicted Co. 3, the Defendants referred to some of the materials in the list of crimes 1 and 2.

D. (1) The respective drawings Nos. 40, 41, 42, 45, 55, and 56 of the above list of crimes are those of the Japanese non-indicted 1 Company, which were provided by the Japanese non-indicted 1 Company at the time of requesting the production and supply of the access car sets to the damaged Company, and the production drawings of the access car sets again prepared by the damaged Company on the basis of these drawings. Each of the materials Nos. 1, 2, 4, and 15 of the above list of crimes are those related to purchase, including the equipment production drawings and purchase cost data of the damaged Company. The materials No. 2 of the above list No. 3 of the crime list of crimes are those which organized the estimated cost calculation statement for each project and the sales revenue of 2011. The materials listed in the list of crimes No. 216 of the above crimes were collected from September 207 to December 207 to the non-indicted 1 Company.

(2) On the other hand, the injured company prohibits the foreign company from disclosing technical information, such as drawings, etc., provided by the victimized company to a third party without the approval of the victimized company by concluding a purchase contract with the foreign company with regard to the equipment (facilities) ordered by the foreign company.

4. Examining these facts in light of the legal principles as seen earlier, the following is determined.

A. The Defendants’ withdrawal of the damaged company without permission or continued to keep without return or discard each material listed in the list 1 and 2 of the crime committed during the withdrawal may constitute an act of breach of trust in accordance with the content of each of the above materials. At the time of withdrawal, the Defendants may be presumed to have breached their duties to divulge each of the above materials to the competitor or intended to use them for their own interest. Thus, the Defendants may also be deemed to have committed a breach of trust.

B. (1) The drawings Nos. 40, 41, 42, 45, 55, and 56 of the above list of crimes include not only the production drawings of Japanese non-indicted 1 company, which were provided by the non-indicted 1 company upon requesting the production and supply of the access car sets to the damaged company, but also the production drawings of the access car sets prepared again by the damaged company based on these drawings. In light of the circumstances in which the damaged company manufactures and supplies the access car sets to the non-indicted 1 company and continues to keep them on business without disclosing the above drawings to the outside, it is sufficient to view that the above drawings are not disclosed to others other than the victimized company and its employees, but also they are acquired or produced by the damaged company through the aforementioned transaction relations with the non-indicted 1 company in Japan, and thus, they constitute a major business asset that can obtain a competitive benefit through the use of the above drawings.

(2) In addition, each of the data set forth in 1, 2, 4, and 15 of the above list 2 of the crime day list includes data related to purchase, such as equipment production drawings and purchase cost data of the victimized company. The data set forth in 16 is the data collected by the victimized company from September 2007 to July 2012 from the contract for the equipment (facilities) ordered by the foreign company. The third party disclosure of technical information, such as drawings provided to the foreign company, is prohibited. All of the above data can be seen as non-public data. Since Defendant 2 and Defendant 3 acquired or produced the above data while performing the work of manufacturing and purchasing equipment, etc. for several years, the materials are not disclosed to many and unspecified persons in light of the circumstances in which Defendant 2 and Defendant 3 moved from office, while making and purchasing equipment, etc., and obtained some of the above data from the victimized company through considerable time and effort and cost, and can be seen as a major competition for the affected company.

(3) However, the data No. 2 set forth in the above list No. 3 is limited to the estimated cost calculation by project and the sales in 2011, and it is insufficient to deem that the damaged company was a considerable time, effort and cost for the acquisition or development of the data, or that it can obtain competitive benefits. Thus, the data set forth in the above No. 3 cannot be deemed as a major business asset of the victimized company.

5. Nevertheless, the court below did not properly examine the above circumstances as to the major business assets, and determined otherwise as to each of the drawings Nos. 40, 41, 42, 45, 55, and 56 of the above crime sight table 1 and the materials Nos. 1, 2, 4, and 16 of the above crime sight Nos. 2, 2, 4, and 56 of the crime committed. Therefore, the court below erred by misapprehending the legal principles on major business assets in the crime of occupational breach of trust, failing to exhaust all necessary deliberations, and by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, which affected the conclusion of the judgment. The allegation in the grounds of appeal

In addition, since each of the facts charged against the Defendants is a single comprehensive crime, the judgment of the court below should be reversed in its entirety.

6. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ki-taik (Presiding Justice)