In a case where a company employee divulges a trade secret or major business asset to a competitor or ships it out without permission for the purpose of using it for his own interest, the time of the crime of occupational breach of trust (=the time of outflow or release), and the time of the crime of occupational breach of trust in a case where the company did not return or discard it for the same purpose despite the obligation to return or discard it at the time of withdrawal (=the time of withdrawal) / Whether the act of divulging the trade secret, etc. which the retired company employee did not return or discard to the competitor company or using it for his own interest constitutes a separate crime of occupational breach of trust (negative in principle), and in a case where the third party conspireds to and interferes with the aforementioned leakage or use, whether the crime of occupational breach of trust is established (negative in principle)

The subject of the crime of occupational breach of trust shall be in the position of administering another person’s business. Therefore, if a company employee divulges a trade secret or major business asset to a competitor or ships it out without permission for the purpose of using it for his own interest, the person who administers another’s business and discharges or takes it out in violation of his/her duty, and thus, the crime of occupational breach of trust is committed at the time of outflow or release. In addition, even in cases where a company employee’s lawful removal of a trade secret, etc. does not constitute a crime of occupational breach of trust, if the company employee disclosed or did not return it to a competitor company for the purpose of using it for his/her own interest even though he/she was obligated to return or destroy

However, barring any special circumstance after the withdrawal of a retired employee, a retired employee cannot be deemed to be in the position of a person who administers another’s business in the crime of occupational breach of trust, and even if he divulges or uses trade secrets, etc. not returned or discarded to a competitor for his own interest, it is nothing more than the already established act of occupational breach of trust. Thus, even if the leakage or use constitutes the crime of violation of the Unfair Competition Prevention and Trade Secret Protection Act (Disclosure of Business Secrets, etc.), there is no room for constituting a separate crime of occupational breach of trust. Furthermore, unless there is a circumstance that a third party cannot recognize the status of a person who administers another’s business with respect to retired employee, barring special circumstances such as where he/she conspireds to conduct another’s business through the above leakage or use, the accomplice

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

Supreme Court Decision 2006Do9089 Decided April 24, 2008 (Gong2008Sang, 809) Supreme Court Decision 2008Do9433 Decided October 15, 2009 (Gong2009Ha, 1904)

Defendant 1 and one other

Defendants and Prosecutor

Law Firm Pyeongan, Attorneys Dai-hee et al.

Seoul Central District Court Decision 2016No3163 Decided February 15, 2017

The part of the lower judgment against Defendant 1 is reversed, and that part of the case is remanded to the Panel Division of the Seoul Central District Court. Defendant 2’s 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 Defendant 1’s ground of appeal

A. As to the occupational breach of trust regarding the file No. 14 of this case

(1) The principal agent of the crime of occupational breach of trust shall be in the position of administering another person’s business. Therefore, if a company employee divulges a trade secret or major business asset to a competitor or ships it out without permission for the purpose of using it for his own interest, the person who administers another’s business and takes it out or out in violation of his/her duties, and thus, is subject to the crime of occupational breach of trust at the time of outflow or release. In addition, even though the company employee’s lawful removal of the trade secret, etc. does not constitute the crime of occupational breach of trust, if the company employee disclosed the trade secret, etc. to a competitor company, or did not return or discard it for the purpose of using it for his/her own interest, even though he/she was obligated to return it to the competitor company at the time of withdrawal, such act may also be subject to the crime of occupational breach of trust at the time of withdrawal (see

However, barring any special circumstance after the withdrawal of the retired employee, the retired employee cannot be deemed to be in the position of a person who administers another’s business in the crime of occupational breach of trust, and even if the employee divulges or uses the trade secret not returned or discarded to the competitor for his own interest, it is merely an act of occupational breach of trust which has already been established. Thus, even if the leakage or use constitutes an act of occupational breach of trust, it shall be deemed that there is no room to constitute a separate crime of occupational breach of trust. Furthermore, as long as the status of a person who administers another’s business cannot be recognized as a retired employee, unless there are circumstances such as the case where a third party conspired or conspireds in the above leakage or use of another’s business, barring special circumstances, the accomplice of occupational breach of trust cannot be established.

(2) In full view of the evidence in its holding, the lower court determined that: (a) Defendant 2 did not return or discard each file of this case at the time of withdrawal from the victim company on August 201; and (b) Defendant 1 used each file of this case in creating a bar code for the competitor company after entering the competition company established by Defendant 1; and (c) Defendant 1 recognized Defendant 2’s use of the file of this case around August 24, 2012, which was publicly recruited and posted as a result of Defendant 2’s use of the file of this case No. 14; and (d) Defendant 1 constituted a crime of violation of the Unfair Competition Prevention and Trade Secret Protection Act (Disclosure of Business Secrets, etc.) regarding the use of the file of this case against Defendant 1. Furthermore, the lower court determined that Defendant 2’s use of the file of this case No. 14 was a crime of occupational breach of trust since it had already been completed due to Defendant 2’s failure to return or destroy the file of this case; but, the crime of occupational breach of trust was established separately as to Defendant 14.

(3) However, examining the facts acknowledged by the court below in light of the legal principles as seen earlier, it cannot be deemed that Defendant 2 was in the position of a person who, at the time of using the instant file No. 14, left the victim company and was in the position of managing the business of the victim company unless there are other special circumstances. Thus, Defendant 2’s use of the file No. 14 of this case does not constitute an element of occupational breach of trust. Accordingly, even if Defendant 1 conspired and conspired to commit the act of Defendant 2, it is not possible to establish the crime of breach of trust in addition to the crime of violation of the Unfair Competition Prevention and Trade Secret Protection Act (Leakage of business secrets).

Nevertheless, the lower court determined otherwise solely on the grounds indicated in its reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on a person who administers another’s business in the crime of occupational breach of trust, a person who is in a non-permanent ex post facto act, etc., thereby adversely affecting the conclusion of the judgment.

B. As to the violation of the Unfair Competition Prevention and Trade Secret Protection Act regarding the file No. 14 of the instant case (the disclosure of business secrets, etc.)

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the lower court, the lower court’s determination that Defendant 1 was guilty of violating the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter “Unfair Competition Prevention and Trade Secret Protection Act”) regarding files No. 14 No. 14 of the judgment of the first instance judgment among the facts charged in the instant case against Defendant 1 on the grounds stated in its reasoning is justifiable. In so determining, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine regarding the principle of strict interpretation, the principle of no punishment without law, the Unfair Competition Prevention

C. Scope of reversal

Of the lower judgment, the part on occupational breach of trust against Defendant 1 regarding the file No. 14 of the instant case should be reversed for the foregoing reasons. However, the lower court rendered a single sentence on the ground that the part with the above grounds for reversal as well as the remaining guilty part (including the part on acquittal in the grounds of appeal) are related to a single comprehensive and commercial concurrent crime. Accordingly, the part on Defendant 1 among the lower judgment should be reversed in its entirety.

2. As to Defendant 2’s ground of appeal

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the lower court, the lower court’s determination that Defendant 2 was guilty on the grounds stated in its reasoning is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the principle of strict interpretation, the principle of no punishment without law, the principle of no punishment without law, the purpose of obtaining unjust benefits or causing damage to a trade secret owner, trade secrets, use, and the person who administers another’s business in breach of trust

3. As to the prosecutor's grounds of appeal

Examining the reasoning of the judgment below in light of the records, it is justifiable for the court below to find Defendant 1 not guilty on the ground that there is no proof of crime as to the facts charged (excluding the part concerning the charge) of this case against Defendant 1 on the grounds as stated in its reasoning, and contrary to what is alleged in the grounds of appeal,

4. Conclusion

Therefore, without examining the remaining grounds of appeal by Defendant 1, the part on Defendant 1 among the judgment below is reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. Defendant 2’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok (Presiding Justice)