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

[2] In a case where an employee of a company removes materials without permission, whether such materials constitute “major assets for business purposes” in order to establish a crime of occupational breach of trust (affirmative)

[1] Article 2 subparagraph 2 of the former Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 8767 of Dec. 21, 2007) / [2] Articles 355 (2) and 356 of the Criminal Act

[1] Supreme Court Decision 2008Do3435 Decided July 10, 2008 (Gong2008Ha, 1212), Supreme Court Decision 2006Do7916 Decided July 9, 2009 (Gong2009Ha, 1362) Supreme Court Decision 2008Do9066 Decided July 15, 2010 / [2] Supreme Court Decision 2009Do3915 Decided June 30, 201 (Gong201Ha, 1549) (Gong201Ha, 1549) Supreme Court Decision 2010Do3043 Decided July 14, 2011

Defendant

Prosecutor

Law Firm Sami General Law Office et al.

Seoul High Court Decision 2010No2160 decided February 24, 2011

The appeal is 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 violation of the Unfair Competition Prevention and Trade Secret Protection Act

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) means any technical or managerial information useful for any production method, sale method, and other business activities, which is maintained in secret by considerable effort. Here, "it shall be maintained in secret by considerable effort" means a situation where it is recognizable that information is maintained and managed in secret objectively, such as where it is possible to recognize that the information is kept in secret by considerable effort, and where it is displayed or notified that the information is classified as secret, and where it is limited to persons who have access to or access to the information, or persons who have access to the information are obliged to keep secret (see, e.g., Supreme Court Decisions 2008Do3435, Jul. 10, 2008; 2008Do9066, Jul. 15, 2010).

In light of the above legal principles and the records, the non-indicted corporation (hereinafter “victim corporation”) managed the drawings of manufacturing, design drawings, etc. in accordance with strict management regulations regarding the appointment of a person in charge of management, restrictions on and procedures for perusal and lending, but only the general document management regulations have been established for documents other than drawings. The above document management regulations have a secret indication in the case of secret documents, but they did not contain a secret indication in the "Report on the progress of development (hereinafter omitted) No. 1 of the crime mail table No. 49 [Attachment] and the “PGG PETRTRT result” No. 49 of the crime mail list No. 49 (hereinafter “the report of this case”). Each of the above reports of this case had been kept in a glass book or spawn at the research and development team and the technology development team office without locking devices within the victim company’s research and development team. However, each of the above offices did not limit access, so it cannot be deemed that they did not freely have any secret access to each of the above documents.

The recognition and judgment of the court below to the same purport is just, and there are no errors in the misapprehension of legal principles as to trade secrets, or in violation of the principle of free evaluation of evidence.

2. As to occupational breach of trust

A. In order to establish a crime of occupational breach of trust where a company employee removes materials without permission from a competitor company or its own intent to use them for the benefit of the competitor, even if such materials are not necessary to constitute trade secrets, it cannot be ordinarily obtained without going through a holder because at least the materials are not disclosed to many and unspecified persons. The holder of such materials is a considerable time, effort and expenses for the acquisition or development of the materials, and falls under a major business asset to the extent that the competitor may benefit from competition through the use of such materials (see, e.g., Supreme Court Decisions 2009Do3915, Jun. 30, 201; 2010Do3043, Jul. 14, 2011).

B. We examine the above legal principles and records.

First of all, the "report on the progress of the development" of the No. 1 of the report of this case is merely the result of the test conducted by the employees of the victimized company in accordance with the defendant's direction with respect to "the production method of TPPMG-diet" which has been inventions before the defendant's entry into the victimized company, and it is difficult to view the damaged company's considerable time, effort, and expenses for its acquisition or development as data. Further, the "the result of the PTPPPP TPPT" No. 49 No. 49 is not only the result of the test conducted by the affected company's employees in accordance with the defendant's direction and instruction to verify the conditions of the driving, but also the result of the test conducted by the affected company in order to make it difficult to find out the results of the test using the PEMG-diet's operating method, which is an element of reaction time and temperature, without response, and the result of the test cannot be seen as a result of the test conducted by the affected company's operation method.

Then, examining the remaining data except for the report of this case among the data listed in the decision of the court below (attached Form). The data provided by the damaged company by analyzing the physical nature or raw materials of PTPPG to the customer who purchased the damaged company's product, the data cannot be viewed as being disclosed to many unspecified persons, such as general promotional data or contract documents or patent application documents prepared while exporting the PTPP production technology to China company (hereinafter referred to as "the injured company") or general promotional data or patent application documents, but rejected invention documents, etc., or the data cannot be deemed as being considerable time, effort and expenses for the acquisition or development of the damaged company including the data led by the defendant or the data prior to joining the damaged company. However, even though the defendant submitted a dispute over the elderly promotion invention of the victimized company and the industrial property dispute between the injured company and the court, it is hard to find that the damaged company's product also did not have any particular value to the injured company, and it cannot be seen as being a competitive product development data, etc. after the use of such data.

The recognition and determination of the lower court to the same purport is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine regarding “major assets for business purposes” in the crime of occupational breach of trust, or by exceeding the bounds of the principle of free evaluation of evidence

3. Conclusion

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

Justices Lee Sang-hoon (Presiding Justice)