2012No3500 A. Occupational breach of trust

(b) Business violation of the Unfair Competition Prevention and Trade Secret Protection Act;

Divulgence, etc. of confidential information)

C. Violation of the Medical Devices Act

D. Violation of the Unfair Competition Prevention and Trade Secret Protection Act

2. Violation of the Trademark Act

1. (a)(c) ; (d) A;

2.(a)(b)B

3.(a)C

4.(a)(b)

Defendants and Prosecutor ( Defendants A and F)

Two-wheeled iron, Red-board (prosecution), and Cho Nam-nam (Public trial)

Attorney H (for defendant A)

Law Firm AI, Attorneys AJ and AK (Defendant B)

Law Firm AL, Attorney M (Defendant C)

AM Law Firm, Attorneys Choi N (Defendant F)

Seoul Central District Court Decision 2010 Godan6136, 2011 Decided October 4, 2012

2672(Joint Judgment) Judgment

February 19, 2013

The judgment of the court below is reversed.

Defendant A shall be punished by imprisonment for one year, by imprisonment for one year and four months, and imprisonment for Defendant C and B, and imprisonment for ten months.

The number 1 through 5, and 7 of the Seoul Central District Prosecutors' Office that was seized, No. 3837, 2010, shall be forfeited from the defendant A, and the number 8, and 10 shall be forfeited from the defendant B.

1. Summary of grounds for appeal;

A. Defendant A

(1) misunderstanding of facts and misunderstanding of legal principles - Violation of the Unfair Competition Prevention and Trade Secret Protection Act (Disclosure of Business Secrets) and occupational breach of trust against N Co., Ltd. (hereinafter "victim Co., Ltd.") or N Co., Ltd. ("N Korea").

A) The Defendant did not take part in the crime of this part. However, the materials 27 through 31 in the list of crimes in the judgment of the court below (hereinafter referred to as “the list of crimes”) were only found in the USB of Defendant B, but did not have been delivered to the other Defendants, and the materials 37 in the Nos. 6, 10, 21 are only the test materials of “V” developed by the Defendant side company. Moreover, the materials 6, 10, 21 in the Nos. 32, 33, and 36 in the Nos. 32, 33, and 35 in the judgment of the court below were not delivered to the victim company, and they cannot be said to be the trade secrets of the victim company.

In addition, if one of the trade secrets was unlawfully acquired and used again, the act of acquisition was absorbed into the act of use, and a separate crime was not established, but the lower court erred by determining the two as a substantive competition relationship.

(2) Unreasonable sentencing

The punishment sentenced by the court below (one year and six months of imprisonment) is too unreasonable.

B. Defendant B

(1) misunderstanding of facts and misapprehension of legal principles

(A) The data from Nos. 1, 7, 8, 10 through 14, 16 through 18, 20, 32 through 36, 39, and 41, which were transmitted by the side, are known that the above data was delivered to the North N (or NN). Thus, it cannot be deemed as a trade secret of the victim company.

In addition, the rest of the materials are similar to the victim company's partial processed materials based on the victim company's re-established materials. Of them, Nos. 2 through 5 are almost similar to the DNA model 3 already announced, so there is no notarial deed. 6 materials are posted on the victim company's website. Thus, there is no notarial deed, and it is irrelevant to the Asia developed by the victim company, and there is no economic usefulness because the materials are not included in technical matters as the schedule for development of the victim company, and Nos. 21 and 22 are disclosed on the victim company's homepage. 32 materials are re-established materials, and since the test materials contain the victim company's schedule in the test items, they are merely open to the victim company's homepage, and there is no economic usefulness for the victim company's product as they do not contain any technical contents, and there is no economic usefulness for the victim company's product, nor are no economic usefulness for the victim company to use the materials in the list 2 through 25, and there is no economic usefulness between the list 3 and 26.

In addition, the Defendant did not have concluded a confidentiality agreement with the victim company, and there was no person in charge of the storage of trade secrets or no person in charge of the management of security devices for the instant materials, and there was no classification of trade secrets or no indication of confidential information, etc., and the Defendant did not have received security education at any time, since the Defendant was able to enter the research and development department at any time, and there was no lack of any record of the security education. Accordingly, the said materials did not meet

Therefore, the instant data cannot be deemed as a trade secret.

B) Since the acquisition and use of a trade secret consisting of a series of acts, only one crime is established, and since infringement of a trade secret and a breach of trust are simultaneously committed as a single act, there is an ordinary competition relationship, the lower court erred by misapprehending the legal doctrine as a substantive competition relationship.

(2) Unreasonable sentencing

The punishment sentenced by the court below (one year and six months of imprisonment) is too unreasonable. Defendant C.

(1) misunderstanding of facts

The defendant merely developed a new resolution under the direction of the defendant A, and did not lead the defendant's illegal acquisition and use of the trade secret of the victim company, and did not commit any act such as joining the defendant B and promising to share, or deceiving the part of the defendant by restructuring.

(2) Unreasonable sentencing

The punishment sentenced by the court below (one year and six months of imprisonment) is too unreasonable.

D. Defendant F

(1) misunderstanding of facts and misapprehension of legal principles

(A) The Defendant is a Chinese national, and the place where the instant crime was committed is China. Thus, the prosecution against the Defendant is inappropriate. However, among the facts charged in the instant case, what the Defendant’s duties are and what act the Defendant committed and what act the Defendant violated his duties is not specified.

C) As to the violation of the Unfair Competition Prevention and Trade Secret Protection Act (Trade Secrets theory, etc.), among the facts charged in the instant case, the Defendant unilaterally received data from the victim through e-mail from Defendant B, and thus, cannot be deemed to have committed a violation under the said Act.

(2) Unreasonable sentencing

The punishment sentenced by the court below (one year of imprisonment and two years of suspended execution) is too unreasonable.

(e) A prosecutor;

The sentence sentenced by the court below to Defendant A and F is too unhued and unfair.

2. Determination:

A. Judgment on the mistake of facts and misapprehension of legal principles by Defendant A

(1) Whether the Defendant participated in the crime

The following circumstances acknowledged by the court below and the court below's duly adopted and examined evidence, i.e., (i) the victim company that supplied the locker in the company of the defendant was trying to develop a string in its own way and supply it to the defendant company by hearing the fact from the defendant C, and (ii) the defendant C sent the defendant's business report on November 25, 2008, which was submitted by the defendant C, to China, and obtained information about the progress of the defendant's business through the defendant B. The defendant's business report on December 1, 2008, stated "AA" and "B" in the victim's business report on the defendant's company's 20th day after being informed of the fact that the defendant's business report on the defendant's 20th day and the defendant's company's 10th day after being informed of the fact that the defendant's act was conducted by the defendant's company's 90th day after being conducted with the defendant company's 10 or 20th day before its completion.

In full view of the fact that the Defendant stated to the effect that it was the victim’s employee (Article 485 of the Investigation Records), it can be sufficiently recognized that the Defendant acquired and used trade secrets in collusion with Defendant B, etc., who was the victim’s employee, for the purpose of causing damage to the victim’s company and obtaining unjust profits, and at the same time engaged in occupational breach

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

(2) Whether the materials 6, 10, 21, 27 through 33, 35 or 37 constituted a trade secret of the victim company

In light of the following circumstances acknowledged by each evidence, i.e., (i) the data related to the structure established by the victim company, and (ii) the defendant B’s computer hard disks and the USB discovered in the P office operated by the defendant company. Considering that the defendant and the defendant B conspired in advance to leak all of the data related to the structure of the victim company, it is reasonable to deem that the above data was leaked; (ii) the data is an infinite material created by the AP, a partner company of the victim company, (iii) the victim company’s primary specifications and communications route with detailed specifications and specifications for the initial design of the product; (iv) the victim company’s first specifications and specifications with 10 materials were re-established, and thus, the defendant company’s new design and re-infinite material was developed by the victim company’s independent design and re-infinite material that would be suitable for the victim company’s new design and re-infinite material.

In full view of the following: (a) materials Nos. 32, 33, and 36 are key materials for the development of an resistant solution that the Defendant B would deliver to the victim company; and (b) materials that only the victim company can hold and must naturally be delivered to the victim company under the aforementioned Convention, each of the above materials constitutes trade secrets of the victim company.

Therefore, this part of the defendant's assertion is without merit.

(3) The number of crimes of misappropriation and misappropriation of trade secrets

Article 2 subparag. 3 (a) of the Unfair Competition Prevention and Trade Secret Protection Act defines "an act of improper acquisition of trade secrets" as "an act of acquiring or disclosing trade secrets by means of cutting off, deceiving, threatening or other unlawful means" and distinguishs the act of using or disclosing the trade secrets. The former Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 7095 of Jan. 20, 2004) only punishs an act of divulging trade secrets by former or incumbent executives or employees, and did not have any penal provision regarding each act of unlawful acquisition or unlawful use of trade secrets. Article 18 (2) of the Act amended on Jan. 20, 204 provides that "any person who acquires or uses trade secrets useful for the company with the aim of obtaining improper profits or causing damage to the company shall be punished by a certain punishment, and that an act of improper acquisition or unlawful use of trade secrets becomes an act of using trade secrets separate from the act of using trade secrets, which constitutes an infringement of the legal interests of another person, such as an act of acquiring or unlawful use of trade secrets."

Therefore, this part of the defendant's assertion is without merit.

B. Judgment on the mistake of facts and misapprehension of legal principles by Defendant B

(1) According to the health class Nos. 1 through 8, 10 through 16, 20 through 18, 20 through 41 of the crime list in the holding of the court below, the defendant proposed that Korean style should be developed separately from Korean style and Chinese style, while Chinese style should be developed separately from Korean style, and the delivery counter should be unified into the development team as above, but the delivery counter is the defendant, and the delivery of N or 14, 16 through 18, 20, 32 through 36, 39 through 41, and the defendant's legal statement, etc., the defendant proposed that Korean style should be developed separately from Korean style and Chinese style. The delivery counter is unified into the defendant, and the delivery counter is recognized as the fact that the delivery counter and the delivery of the data permitted to N or 36, 39 through 41, and the fact that the restoration counter and the maintenance of N or 10, 201.

However, the following circumstances are acknowledged by each of the above evidence: ① the Defendant, at the time of sending the victim's company, sent the victim's new information to the victim's company ① on March 12, 2010 (or around 4:54). At the time of sending the victim's new information, the Defendant again sent the victim's new information to the victim's company; ② the Defendant again sent the victim's new information to the victim's company; ② the Defendant again sent the victim's new information to the victim's company; ② the Defendant again sent the victim's new information to the victim's company; ② the Defendant again sent the victim's new information to the victim's company; ② the Defendant again sent the victim's new information to the victim's company at the time of sending the victim's new information to the victim's company; ② the Defendant's new information to the victim's company's new information to the victim's 20th of March 12, 2010 (or the Defendant's new information to the victim's company).

B) Next, as seen earlier, any appearance is required for the remaining materials to be developed in secret interest by another company, and any technology has been used, and the counter party's response thereto is recognized in itself as non-officialness and economic utility. Thus, even if some of the above materials have been used, it is reasonable to deem it as a trade secret. Serial 6 materials also belong to the victim company's related data, and when developing the same product, economic benefits are generated in terms of market preference, estimation contents, test results, etc. In addition to the Korean-style Chinese-type Chinese-type Chinese-type Chinese-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-

(C) In addition, the following circumstances acknowledged by each of the above evidence are as follows: (a) the victim company appears to have been individually neuted in managing trade secrets due to the enemy having difficulties arising from patent infringement disputes prior to the instant case; (b) Article 7(4) of the Rules of Employment of the victim company stipulates that the victim company has a duty not to divulge confidential information learned in the course of performing its duties; (c) the defendant has a duty to provide security-related education to employees based on the above rules of employment; (d) the research institute in charge of the development of the instant load storage was allowed to have access only with a separate card; and (e) the defendant was able to have access to the data related to the above load storage because it was linked to the victim company by installing CCTV, etc.; and (e) the defendant was able to have access to the data related to the lock storage; and (e) the development of the load storage development of the instant case should be managed as confidential in view of its nature by concluding an agreement with the victim company to maintain confidentiality; and (e) the defendant also maintained the above data.

D. Accordingly, all of the data of this case constitute trade secrets of the victim company, and this part of the defendant's assertion against this is without merit.

(2) As seen in the above A. (3), the act of improper acquisition of trade secrets and the act of improper use of trade secrets is in a substantive concurrent relationship. Thus, this part of the defendant's assertion is without merit.

(3) The number of offenses of violation of the Unfair Competition Prevention and Trade Secret Protection Act (Disclosure of Business Secrets) and occupational breach of trust

Since the crime of violation of the Unfair Competition Prevention and Trade Secret Protection Act and the crime of occupational breach of trust correspond to each of the crimes committed respectively, they are in a mutually competitive relationship (see, e.g., Supreme Court Decision 2012Do676, Nov. 15, 2012). However, the judgment of the court below is deemed as a substantive concurrent relationship and punished. Thus, the judgment of the court below is erroneous by misapprehending the legal principles on the number of crimes, which affected the conclusion of the judgment.

Therefore, this part of the defendant's argument is justified.

C. Judgment on the mistake of facts by Defendant C

The following facts acknowledged by each of the above evidences are as follows: ① The defendant informed the defendant A of the fact that the victim company intends to develop and supply the string to the side by itself; ② The defendant B, the team leader of the victim company, entered China in the business report of November 2008, submitted to the defendant A; ② The defendant B, the team leader of the victim company, and obtained information about the progress through the defendant B. The purport of the "I would absorb the victim company AA and the defendant B" in the business report of December 1, 2008, and the purport of the "I will confirm the progress of the victim company through the defendant B, utilize the connection between the defendant B and the United Kingdom, and secure the data received by the defendant B and the defendant B before March 15, 2009."

In full view of the fact that the purport of "to be prepared for the future" is written (Article 1199 through 1205 of the Investigation Records), and the fact that the defendant proposed co-defendant D and E to develop a resistant solution and received a report on the development situation, it can be sufficiently recognized that the defendant acquired and used trade secrets in collusion with the defendant B, etc., who was an employee of the victim company, for the purpose of causing damage to the victim company and obtaining illegal profits, and at the same time, committed occupational breach of trust against the victim company.

Therefore, the defendant's assertion is without merit.

D. Determination of the mistake of facts and misapprehension of legal principles by Defendant F’s assertion on the lawfulness of indictment against Defendant F

The main text of Article 6 of the Criminal Act provides that the Criminal Act shall apply to foreigners who have committed crimes against the Republic of Korea or Korean nationals outside the territory of the Republic of Korea. Since the facts charged in this case contain crimes committed against the victim company that is a Korean citizen, the indictment in this case is lawful.

Therefore, this part of the defendant's argument is without merit. Of the facts charged as to the violation of occupational duty, the point of occupational breach of trust among the facts charged as to the violation of occupational duty in this case is that the defendant Eul, an employee of the victim company, maintains the trade secret of the victim company, violated the duty to manage it as confidential, thereby causing damage by reducing the trade secret of the victim company. The defendant actively participated in the above act as a co-principal of the defendant Eul. Since it is possible for non-identification persons to establish a co-principal, the crime of occupational breach of trust is established if the relation of co-principal with the defendant Eul is recognized, and there

Therefore, as long as Defendant B forms the co-principal of Defendant B, the charge of occupational breach of trust is specified. Therefore, this part of Defendant’s assertion is without merit. Whether Defendant participated in the crime is a co-principal of Defendant B.

The following circumstances acknowledged by each of the above evidence reveal: (a) Defendant A instructed Defendant C to assist Defendant C well while developing an internal recreation system (Article 3166 of the Investigation Record); (b) Defendant C accompanied Defendant C to B at the time of delivery in China from the victim company following the sunset around December 2008; (c) Defendant B stated in an investigative agency that Defendant C was using the Defendant’s board (Article 2130 of the Investigation Records); (d) Defendant B sent each of the above materials to Co-Defendant D and E by e-mail and sent them to the Defendant see in the form of receipt; (b) Defendant B sent the above materials in some title or content of the above materials; (c) Defendant B, without knowledge of the victim company or the victim company’s partner company, could have easily known that the above materials were the victim company’s trade secret; and (e) Defendant B’s act of acquiring the victim company’s trade secret in collusion with Defendant C and the victim company’s unjust enrichment; and (e) Defendant C et al., developed the victim company’s trade secret and information.

Therefore, this part of the defendant's assertion is without merit.

E. Although Defendant A, C, and F made ex officio judgment on the judgment of ex officio against Defendant A, C, and F, despite the fact that the crime of violation of the rate of violation of the Unfair Competition Prevention and Trade Secret Protection Act (Leakage of business secrets, etc.) and the crime of occupational breach of trust committed against Defendant A, C, and F are in a mutually competitive relationship, the judgment of the court below is deemed to have a substantive concurrent relationship, and thus, it is erroneous in the misapprehension of legal principles as to the number of crimes committed by the judgment of the court below

3. Conclusion

Therefore, the part on Defendant B in the judgment below on the ground that the appeal by the above Defendant is well-grounded, and the remaining Defendants have grounds for ex officio reversal. Thus, without examining the Defendants and the prosecutor’s allegation of unfair sentencing, the decision on the grounds of unfair sentencing under Article 364(2) and (6

The judgment of the court below shall be reversed, and the judgment shall be judged as follows.

Criminal facts and summary of evidence

The summary of the facts constituting an offense recognized by this court and the evidence related thereto is as shown in each corresponding column of the judgment below, except where the person who prepared the offense Nos. 37 from among the facts constituting an offense in the judgment of the court below is corrected as “N” and “AR” as stated in each corresponding column of the judgment of the court below. Thus, it is cited as it is in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Article applicable to criminal facts;

Defendants: Article 18(2) of the Unfair Competition Prevention and Trade Secret Protection Act, Article 30 of the Criminal Act, Articles 356 and 355(2) of the Criminal Act, Article 30 of the Criminal Act

Defendant A: Articles 43(1), 24(1), and 6(2) of the former Medical Devices Act (Amended by Act No. 10464, Apr. 7, 201); Articles 18(3)1 and 2 subparag. 1(f) of the Unfair Competition Prevention and Trade Secret Protection Act; Article 93 of the Trademark Act

1. Commercial competition;

Defendants: Articles 40 and 50 of the Criminal Act

1. Selection of punishment;

Defendants: Imprisonment Decision

1. Aggravation for concurrent crimes;

Defendants: former part of Article 37, Articles 38(1)2 and 50 of the Criminal Act

1. Confiscation;

Defendant A: Article 97-2(1) of the Trademark Act

Defendant B: Article 48(1) of the Criminal Act

The crime of this case committed by the Defendants on the grounds of sentencing is due to the fact that there is a need to strictly punish the victim company by deceiving the victim company with a duty not to divulge confidential information in a planned way by deceiving other persons, thereby causing enormous damage to the victim company, and withdrawal of their own benefits. Nevertheless, the Defendants did not reflect the fact that the Defendants denied the crime of this case from the beginning up to the trial, and make it difficult for them to believe, and Defendant A conspired to acquire and use trade secrets from the beginning, and its role was reduced, which is excluded by other accomplices from the crime, but the role was reduced, thereby causing substantial damage to the victim company by producing the products using the trade secret that has been infringed upon again, and the Defendant F appears to have played a significant leading role in the victim company, such as the plan to commit the crime of this case and participation from the beginning, and the fact that Defendant C and C were not subject to punishment more favorable than the fine, and Defendant CFC did not have any specific motive to punish the victim, which is the first instance court, and Defendant CFC had no specific motive for the victim.

The presiding judge or assistant judge shall be appointed;

Judges Jinwon

Judge Choi US-young