The prosecutor's appeal is dismissed.

1. In full view of the gist of the grounds for appeal (misunderstanding of facts), the Defendant’s respective source code (hereinafter “instant source code”) indicated in the list of offenses attached to the Defendant, and the background leading up to the release and return of the instant source code, the completion degree and importance of the source code, etc., the Defendant, knowing that the source code of this case was a major asset of the victim D (hereinafter “victim”).

Therefore, the intention of occupational breach of trust is recognized.

Nevertheless, the intention of occupational breach of trust is not recognized.

The judgment of the court below is erroneous in the misapprehension of facts and adversely affected the judgment.

2. Determination

A. According to the evidence duly admitted and examined by the lower court and the first instance court, the following facts are acknowledged.

1) The victim company is a company that develops and sells computer hacking and security products.

From October 1, 2010, the Defendant entered the victim company and worked as the head of the new technology development team. The Defendant was in charge of the core engine development of the security program “E”, which is the main product of the victim company, and from January 19, 2016, he/she is working as a research warden in the “F” (hereinafter referred to as “F”).

2) From September 2015, the victim company failed to pay wages to its employees, including the Defendant due to sales depression, etc., and the Defendant expressed his/her intention of withdrawal from office from the beginning of November 2015. On November 19, 2015, the victim company submitted a letter of resignation to J, the representative director of the victim company, and did not work thereafter.

3) On November 27, 2015, the Defendant showed that, at the request of the victim company, a video program, other than the products supplied to the customer, can be performed simply on the following grounds: “NS code and Osp code, and Psp code, are stored and delivered to the USB” for the transfer of the victim company.