Defendant 1 and two others

Defendants

Kim Yong-ju

Attorney Disturbing Law (for the accused)

Seoul Central District Court Decision 2004Ra6115 Delivered on June 20, 2006

The judgment of the court below is reversed.

The Defendants are not guilty.

1. Summary of the facts charged in this case and the judgment of the court below

A. Summary of the facts charged in this case

The summary of the facts charged of this case is that Defendant 1 entered the victim non-indicted 1 corporation (hereinafter referred to as "victim company") who mainly engages in the manufacture and sale of the ultra-wave diagnostic machine around January 1993, and worked as the DSC Liability Research Institute (hereinafter referred to as "non-indicted 1 corporation") and retired on March 29, 2002, and worked as the former researcher of the hardware with the transfer to the non-indicted 8 corporation (hereinafter referred to as "non-indicted 8 corporation") around August 1, 200, and the defendant 2 was employed as the former researcher of the hardware. The defendant 1 was the former researcher of the PA (UP&I) on September 30, 200, and the head of the overseas research team of the non-indicted 1 corporation was employed as the former customer support team of the non-indicted 3 corporation on April 18, 2004 and worked as the former customer support team of the non-indicted 1 corporation on March 28, 2008.

(1) Defendant 1:

In accordance with a trade secret protection clause entered into with a victimized company, the injured company's trade secret should not be disclosed to any third party without permission or used for any purpose other than business or files, etc. in which the trade secret has been stored are not disclosed to the outside of the company, but in violation of its occupational duty, and in violation of its occupational duty, the injured company should have the idea to use the trade secret data containing the initial diagnostic machine process, etc. in research and

On July 1996, from around March 2002 to around March 2002 (the time when the defendant was found to have been in error in light of the above defendant's retirement time), the injured company's office, etc. located in the Meson venture business located in Gangnam-gu Seoul Metropolitan Government (hereinafter referred to as "the omission), including the contents of the DSSC circuit map development plan, function request, etc. related to the early-wave diagnostic devices developed by the injured company, which was obtained about 10 times from the computer of the victimized company, the contents of the attached crime list of the judgment below, 11,153 files, such as the contents of Defendant 1,153 files of the above defendant 1,153 files of the above defendant's house in Gangnam-dong 316 Ma Apartment apartment (Dongh omitted), and the defendant 1's office computer in Gangnam-gu, Seoul Metropolitan Government, stored the above crime list of the defendant 1, and supplied the defendant 25 PC to the U.S. market at the same time as the price decrease in property profits.

(2) Defendant 2:

Pursuant to a trade secret protection note entered into with a victimized company, no trade secret shall be disclosed to any third party without permission, or files, etc. in which the trade secret has been stored shall not be disclosed to the outside of the victimized company, and any trade secret data shall be returned or discarded to the victimized company at the time of withdrawal, and no act such as returning them to the victimized company or referring them to the computer of the competing company, etc. shall be committed in violation of the trade secret protection duty, even though there is a duty that should not be done in the course of performing such act as referring them to the information by storing them on the computers of the competing company, it is thought that the victimized company will use them when it retires or retires from office by deducting the trade secret data containing the trade secret data in relation to the research and development of the victimized company

From August 202 to August 2003, at the same time, the victim company's office, etc. stored in the portable USB Meetization at the computers, etc. of the victimized company and obtained about 80 times through the computers, etc. of the victimized company, etc. at the expense of the victimized company, and the files and projected materials related to AMC5c/AP&I-related files and projected works developed by the victimized company, such as the above crime logs and projected data, about 1,020 files and projected data, such as the house PC and CD of Defendant 2 in Dobong-gu Seoul Metropolitan Government, were stored in the office of the victimized company's office, etc. at the expense of the victimized company, and at the same time, the defendant acquired the above defendant's office's 40 billion won and its profits in the aggregate from the above crime 2000,500,500,000,000 from the supply of 40,000,000,00

(3) Defendant 3:

In accordance with a trade secret protection clause entered into with a victimized company, even if the injured company's duty of disclosure without permission to another person or use files, etc. in which the trade secret is stored for any purpose other than the business or is not carried out to the outside of the company, the injured company has the idea to use the trade secret information which contains the first-frequency diagnostic process, etc. in research and development in the victimized company, in violation of its duty of business, and has deducted the

From June 200 to August 2000, the injured company developed at the computers, etc. of the victimized company at the victimized company's office from the from the French point of view on June 2002 to the lower day on August 2003, the injured company arbitrarily copied approximately 858 files, such as Defendant 3 house CDs, and kept them out of the office, and kept them at the office with the above Defendant's house, and kept them on November 8, 2003, the amount of damages caused by the above Defendant's financial losses, such as the price of customer information, and the price of customer information, SS900 Tz, etc., which were used by the above Defendant, and the amount of damages caused by the above Defendant's financial losses, such as the price of the above crime, 30 billion won, and the competitive profits of the company 40 billion won. At the same time, the amount of damages caused by the above Defendant's financial losses, such as the price of customer information, 390 billion won.

B. The judgment of the court below

The lower court found the Defendants guilty of all the charges of this case by adopting the Defendants’ prosecutor’s and partial statements at the lower court, Nonindicted 3 and 4’s respective statements at the lower court, Nonindicted 3’s statements at the prosecution, investigation reports (registration attached to a security pledge), and evidence Nos. 1 through 8 as evidence.

2. Summary of grounds for appeal;

A. misunderstanding of facts and misapprehension of legal principles

① Some of the files of the facts charged of this case (hereinafter “the files of this case”) did not have been prepared or acquired by the Defendants in relation to their duties at the time when they worked in Nonindicted Co. 1 Company. Among the files of this case, the files that the Defendants prepared or acquired at the time when they worked in Nonindicted Co. 1 Company are already disclosed, the files that can be easily obtained by anyone, the files that are automatically created by computers, or the files that are no longer useful for a considerable period of time, cannot be deemed as constituting trade secrets, and the files of this case cannot be deemed as trade secrets. ② The technical composition of the first time diagnosis to be launched by Nonindicted Co. 1 and Nonindicted Co. 8 was different, and the Defendants did not have any intent to use trade secrets of Nonindicted Co. 1 Company, and thus, there was no intention to commit occupational breach of trust, and ③ some of the files of this case constitute trade secrets of Nonindicted Co. 1 Company, and even if the Defendants had no evidence to acknowledge that they had suffered damage to the Defendants’ use of trade secrets of Nonindicted Co. 81 Company.

Therefore, the facts charged in this case should be pronounced not guilty on the ground that all of the facts charged in this case are without proof of crime. However, the court below found the defendants guilty on all of the facts charged in this case by adopting as evidence each of the defendants' prosecutor's office and the court below's respective statements, and each of the statements at the prosecutor's office or the court below's office, which are insufficient to prove credibility or lack of evidence of the facts charged in this case.

B. Unreasonable sentencing

Even if the facts charged in the instant case are found guilty, in light of various circumstances, each of the lower courts’ punishment against the Defendants (two years of suspended sentence of one year) is too unreasonable, in light of the following: (a) the Defendants did not intentionally take out the instant files; (b) the files were not worth using the products produced by Nonindicted Co. 8; (c) the Defendants had no criminal record; and (d) the Defendants were sentenced to a suspended sentence or a heavier punishment for the instant case.

3. Judgment on misconception of facts and misapprehension of legal principles

A. Determination as to whether the Defendants had the intent to commit occupational breach of trust at the time of keeping the instant files at their home

(1) Each of the facts charged of this case is premised on the premise that the total sum of 13,00 files of this case are trade secrets of Nonindicted Co. 1. However, without further proceeding to decide on them from the aspect of the litigation economy (the files of this case are kept in the seized Defendants’ home computers and house, and in the office computers of Nonindicted Co. 8, the files that are irrelevant to the economic profit and loss out of the confidential materials of Nonindicted Co. 1 Co. 1), S1, S2 (the files that are irrelevant to the economic profit and loss out of the confidential materials of Nonindicted Co. 1 Co. 1 Co. 1), T2 (the files that allow access only to the minority related persons, which are irrelevant to the economic profit and loss), and T2 (the files that allow access only to the minority related persons from Nonindicted Co. 1 Co. 1 Co., Ltd.). However, the files of this case are classified as trade secrets of Nonindicted Co. 1 Co. 1 (the files that are irrelevant to the economic profit and they are not disclosed).

(2) The crime of occupational breach of trust due to the divulgence of trade secrets reaches the conclusion of a contract when a company employee disclosed a trade secret to a competitor or ships it out without permission for the purpose of using it for his own interest (see Supreme Court Decision 2003Do4382, Oct. 30, 2003). We will examine whether the Defendants had the intent of occupational breach of trust against the Defendants when the instant files are taken out from the computers of Nonindicted Company 1.

(3) According to the records of this case, ① the instant files were made from 191 to 203, and the files were not arranged by employees of Nonindicted Co. 1 at the time of the withdrawal of Nonindicted Co. 1, 200, and there was a lack of storage space to keep the data from Nonindicted Co. 2 at the time of the withdrawal of Nonindicted Co. 1, 200, and the Defendants were forced to transfer the CDs, etc. in their possession to Nonindicted Co. 1, 3, Nonindicted Co. 1, 200 at the time of the withdrawal of Nonindicted Co. 1, 200, to Nonindicted Co. 1, Nonindicted Co. 3, Ltd., Ltd. (the above Nonindicted Co. 1, 200, Nonindicted Co. 1, Nonindicted Co. 4, who were not affiliated with Nonindicted Co. 1, 200, and Defendant Co. 1, who was not affiliated with Nonindicted Co. 3, Ltd., Ltd.).

(4) In light of the above facts, it is difficult to recognize that the Defendants intended to leak data for the company to leave their business in mind, taking into account the possibility of personal interests or the possibility of leaving their business in the future, beyond keeping such data in custody for the company’s home while working in Nonindicted Co. 1 Company. Thus, it cannot be deemed that the Defendants had the intent of occupational breach of trust when shipping the instant files from the company’s computer.

B. Determination as to whether the Defendants had intent to commit occupational breach of trust at the time when the Defendants transferred the instant files to the computers of Nonindicted Company 8’s office

(1) As seen earlier, even if the Defendants did not have an intention to commit occupational breach of trust when shipping the instant files from the computers of Nonindicted Company 1, it is reasonable to view that the Defendants subsequently transferred the instant files to the computers of Nonindicted Company 1 for their own interest or a third party’s interest, if then, the crime of occupational breach of trust was committed. Therefore, it is reasonable to examine whether the Defendants had the intent to commit occupational breach of trust at the time of transferring the files to the computers of Nonindicted Company 8’s office.

(2) In the case of Defendant 1, all files kept in the computer of Nonindicted Company 8 are related files to Nonindicted Company 8, and they are not files of Nonindicted Company 1, and thus, the said Defendant cannot be deemed to have leaked the files of Nonindicted Company 1 to Nonindicted Company 8.

(3) Next, Defendant 2 asserted that, around May 204, Defendant 3 had no need to refer to Defendant 2 and 3 while carrying out harsh business, Defendant 2 copied the files of Nonindicted Company 1 to CDs and transferred them to the computers of Nonindicted Company 8, but the program used by Nonindicted Company 8 was different from the program used by Nonindicted Company 8, and did not have any intent to use the files. Defendant 3, as part of the data of Nonindicted Company 1 were carried out in part to the computers of Nonindicted Company 8 and transferred them to the computers of Nonindicted Company 1. It is difficult to conclude that Nonindicted Company 8 and Nonindicted Company 2 were transferred to the computers of Nonindicted Company 8, taking into account the economic benefits of Nonindicted Company 8 and Nonindicted Company 8 as seen earlier, based on the following circumstances: (a) it is difficult to conclude that Nonindicted Company 8 and Nonindicted Company 2 were transferred from the seized files to the computers of Nonindicted Company 1 and Nonindicted Company 8 were transferred to the computer.

C. Sub-committee

Therefore, the defendants cannot be deemed to have had the intent of occupational breach of trust against the defendants at the time of keeping the files of this case in the defendant's office or in the office computer of the non-indicted 8 corporation. Thus, regardless of whether the files of this case constitute the trade secret of the non-indicted 1 corporation, all of the facts charged of this case constitutes a case where there is no proof of crime. However, the court below found the defendants guilty of all the facts charged of this case, which affected the conclusion

4. Conclusion

Therefore, the judgment of the court below shall be reversed in accordance with Article 364(6) of the Criminal Procedure Act, since the defendants' appeal is well-grounded, and the following judgment shall be rendered again after pleading.

The summary of the facts charged against the Defendants is as stated in Paragraph 1-A of the above Article. As stated in Paragraph 3 of the above Article, all the facts charged constitute a case where there is no proof of facts constituting a crime, and thus, all the Defendants are acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act.

Judges Kim Yong-sik (Presiding Judge)