[1] The meaning of "acquisition" and "use of trade secrets" under Article 2 subparagraph 3 of the Unfair Competition Prevention Act

[2] The case dismissing an application for provisional injunction under Article 10 of the Unfair Competition Prevention Act on December 31, 1991 on the ground that a person acquired a trade secret prior to the enforcement of the Unfair Competition Prevention Act

[1] The "acquisition of a trade secret" may be made in the form of acquiring a corporeal substance possession, such as documents, drawings, photographs, recording tapes, films, and files made in the form of processing by the electronic data processing system, and it may be made in the form of directly recognizing and memorying the trade secret itself without acquiring the possession of the corporeal substance, and may also be made in the form of employing a person who knows the trade secret. If the trade secret becomes a situation in which the trade secret can be created and used as one's own in social norms, it shall be deemed that the company acquired the trade secret unless there are special circumstances, and on the other hand, the "use of the trade secret" refers to an act that is directly or indirectly used for business activities such as production and sale of goods, or by using it in research and development projects, etc. in accordance with the original purpose of use of the trade secret, and it can be deemed that the company has acquired the trade secret unless there are special circumstances.

[2] The case dismissing an application for prohibition of provisional disposition under Article 10 of the Act pursuant to Article 10 of the Addenda of the Unfair Competition Prevention Act (amended by Act No. 4478 of Dec. 31, 1991) on the ground that a person who served as the representative director of the applicant company had been employed as the representative director of the applicant company established the respondent company before December 15, 1992, which was the enforcement date of the Unfair Competition Prevention Act (amended by Act No. 4478 of Dec. 31, 1991) and was appointed as the representative director of the applicant company, and the applicant company's business as the business of the respondent company was manufactured and sold finp paper for the purpose of manufacturing and selling finp paper papers manufactured and sold by the applicant company as the business of the respondent company.

[1] Article 2 subparagraph 3 of the Unfair Competition Prevention Act / [2] Article 2 subparagraph 3 and Article 10 of the Unfair Competition Prevention Act, Paragraph 2 of the Addenda of the Unfair Competition Prevention Act ( December 31, 1991), Paragraph 2 of the Addenda of the Enforcement Decree of the Unfair Competition Prevention Act ( December 14, 192)

[2] Supreme Court Decision 96Da31574 delivered on November 26, 1996 (Gong1997Sang, 58), Supreme Court Decision 96Da16605 delivered on December 23, 1996 (Gong197Sang, 501)

Busan Heavy Industries Co., Ltd. (Attorney Han-soo, Counsel for the plaintiff-appellant)

Same-sex Detailed Co., Ltd. (Attorneys Park Woo-ho et al., Counsel for the defendant-appellant)

Daegu High Court Decision 97Kahap44 delivered on December 3, 1997

The judgment below is reversed, and the case is remanded to the Daegu High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental grounds submitted after expiration of the period).

1. Fact-finding and judgment of the court below

A. Fact-finding by the court below

According to the reasoning of the lower judgment, the lower court acknowledged the following facts by comprehensively taking account of the evidence in its judgment.

(1) Since its establishment on September 24, 1986, the applicant company manufactures and sells spin pots which are parts of the chemical fiber manufacturing equipment. Spin factoring consists of a basic process from a chemical synthetic fiber, namely, a basic process from extraction of the originals of a chemical synthetic fiber, i.e., terate acid in a solid state and ethyleneglass (EG) in a liquid state by mixing them with high temperature and high voltage and high voltage, and thereby producing a room by emitting them into a dynamic state. The applicant company is necessary in the process of putting them into a splate and splate, splate, radioactive cutting, and removing it into a spin splate and spin splate, and the spin sphere and spin sphere in a state of liquid and spin sphere sphere in a state of sphere.

(2) There was no sufficient space between the metal forest, theme, and the body part of the body part of the body part of fin take off by high temperature and high pressure. As a result, there was a phenomenon that the body part of the fin-cin-cin-cin-cin-cin-cin-cin-cin-cin-cin-cin-cin-cin-cin-cin-cin in the storage room, there was a gap between the storage part delivery and the fin-cin-cin-cin-cin-cin-cin-cin-cin-cin-cin-cin-cin-cin-cin-cin-cin-cin-cin-cin-cin-cin-cin-cin-cin-cin-cin-cin-cin-cin-cin-cin-cin-cin-cin-cin-cin-cin-cin-cin-cin-cin-cin-cin-cine’s in the substance.

신청인 회사는 1987. 9. 1. 신청외 제일합섬 주식회사(이하 '제일합섬'이라고만 한다)와 사이에 신청인 회사가 생산하는 제품에 대한 제일합섬의 해외 마케팅 및 수출 독점권 행사에 관한 기본계약을 체결하고, 1988. 2. 9. 일본국 회사인 주식회사 와따나베 키이치 제작소(도변의일제작소, 이하 '와따나베'라고만 한다) 및 제일합섬과 사이에 스핀 팩 필터 및 스핀 팩 관련 부품에 대하여 주문자생산(OEM) 기본계약을 체결한 다음, 신청인 회사의 직원을 5회 정도 와따나베에 파견하여 기술자료를 제공받고 기술적 자문과 지도를 받아 필터 및 패킹 금형과 그 제작기술 등을 일부 이전받고, 스핀 팩 필터의 대량제작에 필요한 유량 및 압력계측기 등 여러 정밀기기를 와따나베로부터 구입하였으며, 위 기본계약에 따라 1988. 2. 10. 제일합섬과 사이에 '스핀 팩 부품 생산 및 수출독점권 행사'에 관한 계약을 체결하고 제일합섬이 보유한 노하우(know-how)를 제공받아, 플레이트 림(plate rim)의 양쪽 단부의 한 부분을 절삭하여 플레이트 림과 여과체 사이의 단턱을 최소화함으로써 공정물질의 흐름을 원활하게 하고, 플레이트 림의 내주연과 여과체 단부 사이에 여유공간을 확보하여 저장부 내의 고압에 의한 플레이트 림의 팽창에 대비함으로써 종래의 스핀 팩 구조 아래에서 나타났던 여과체의 휨 또는 돌출현상을 없애고, 아울러 저장부 내의 고온·고압 및 공정물질과의 접촉에 의한 플레이트 림의 잦은 부식을 방지하기 위하여 림의 재질을 구리판재로 하고 표면을 니켈도금 처리하거나 림의 재질을 알루미늄으로 하는 등 림의 부식 정도를 현저히 줄여 그 품질을 개선하였다.

(3) Meanwhile, from July 25, 1991 to August 12, 192, Nonparty 1, the representative director of the respondent company, served as the joint representative director of the applicant company, together with Nonparty 2, from July 25, 1991 to August 12, 192. Nonparty 3, from July 10, 1989 to August 2, 1992, Nonparty 4, from March 7, 1992 to August 22, 1992, and Nonparty 5, from July 17, 1989 to August 10, 192, were in charge of the core duties concerning the manufacture or sale of the applicant company's spin fin pen.

The rules of employment of the applicant company stipulates that "the members shall strictly observe the secrets in the course of performing their duties and shall not divulge the secrets of the company," and that "the non-applicant 3, non-applicant 4, and non-applicant 5, at the time of entry into the applicant company, shall not divulge any confidential information and confidential information of the customer, which are obtained while serving in the company, to the outside, and shall not use it."

However, the non-applicant No. 1 established the respondent company on August 31, 1992, immediately after being released from the representative director of the applicant company due to the personal knowledge of the management surrounding the applicant company's shares. The non-applicant No. 3, the non-applicant No. 4, and the non-applicant No. 5 arbitrarily caused the applicant company's technical data or copied the core technology about the manufacturing of the Sfin-copter, and made the applicant company join the applicant company. On November 11, 1992, the non-applicant No. 1 provided the factory facilities necessary for the manufacturing of Sfin-copter which are similar to the manufacture and sale in the applicant company based on the applicant company's data or core technology. On February 1, 1993, the non-applicant No. 50% of the annual average sales from the applicant company to the non-applicant No. 4, etc., more than 90% of the company's products, and the company has become more than 9% of the company's products.

B. The judgment of the court below

According to the reasoning of the lower judgment, the lower court determined as follows, on the basis of the foregoing factual basis, as follows.

(1) As to whether the applicant company's instant fin-cin-cin-cin-cine manufacturing technology constitutes a trade secret under Article 2 subparagraph 2 of the Unfair Competition Prevention Act

In light of the above fact that the applicant company's process of acquiring the spin-cop-cop-cop-cop-cop-cop-cop-cop-cop-cop-cop-making technology, the applicant company's technical information on the production method of the spin-cop-cop-cop-cop-cop-cop-cop-cop-cop-cop-cop-cop-making in order to establish the respondent company producing the spin-cop-cop-cop-cop-cop-cop-cop-cop-

(2) Whether the respondent company violated trade secrets

The non-applicant 1 worked as the representative director of the applicant company, and the non-applicant 3, the non-applicant 4, and the non-applicant 5 were core employees and technicians of the applicant company who enter the applicant company. Since the rules of employment of the applicant company have such provisions, considering the characteristics of personal trust between the applicant company and the non-applicant 1, the non-applicant 1 bears the duty to maintain the above trade secret for a considerable period of time even after withdrawal from the applicant company under the contractual relationship and the principle of good faith. However, the non-applicant 1 established the respondent company in order to use the trade secret to obtain profits in time and economy, and the non-applicant 1 made public the Respondent's manufacture technology of spin fin in fact and produced the product the same as the applicant company. Accordingly, the above actions by the non-applicant 1 constitute trade secret infringement under Article 2 subparagraph 3 (d) of the Unfair Competition Prevention Act since they were conducted for the purpose of obtaining unjust profits contrary to good morals and other social order in light of the principle of fair competition

Meanwhile, it is reasonable to view that the respondent company acquired the technology and business information of this case owned by the applicant company as unlawful means, such as inducing the disclosure of manufacturing technology by allowing the applicant company to produce products using sin fin type manufacturing technology, knowledge, experience, etc. obtained from the applicant company after the applicant company was retired from office as a joint representative director of the applicant company and immediately after retirement from office. Thus, it constitutes trade secret infringement under the former part of Article 2 subparagraph 3 (a) of the Unfair Competition Prevention Act.

(3) Effect of infringement of trade secrets

Since the respondent company manufactures and sells the fin-fin-fin-fin-fin-fin-fin-fin-fin-fin-fin-fin-fin-fin-type which is similar to the applicant company, the sales growth of the applicant company has been growing, the respondent company's trade secret infringement has been infringed by the respondent company's trade secret infringement. Therefore, the applicant company is entitled to claim the prohibition

(4) As to the application of Article 2 of the Addenda to the Unfair Competition Prevention Act

The use of trade secrets acquired by non-applicants, such as non-applicants 1 by themselves while serving in the applicant company, and the acquisition and use by the respondent company by disclosing it to the respondent company shall be distinguished from each other in light of the independence of the legal personality.

Before the enforcement of the Unfair Competition Prevention Act (amended by Act No. 4478 of Dec. 31, 1991), Nonparty 1 served as the representative director of the applicant company from July 8, 1991 to August 12, 192, which was prior to the enforcement of the Unfair Competition Prevention Act (amended by Act No. 4478 of Dec. 31, 1991, and was established by the respondent company and appointed as the representative director. The applicant company was also equipped with manufacturing facilities based on the materials or core technologies related to the applicant company’s spact spacting of the applicant company acquired through Nonparty 3, 4, and 5 prior to the enforcement of the above Act. From February 11, 1993, the applicant company commenced to manufacture and sell the spin spact spact spact s in the name of the respondent.

Although the respondent company was established by the non-applicant 1, and the non-applicant 3 et al. retired from the respondent company was employed by the respondent company, and they were manufactured and provided a sample of Sfin sp sp sp sp sp s, it is insufficient to conclude that only the acts of the non-applicant sp sp sp sp sp sp sp sp sp s are disclosed to the respondent company, or that the respondent company, an independent business entity with separate legal personality from the above applicant sp sp sp s

Rather, according to the facts acknowledged above, since February 1993, which was after the enforcement of the Unfair Competition Prevention Act as mentioned above, the respondent company started to manufacture and sell spin spin spin sp sp sp sp sp sp sp sp sp sp sp sp s

Therefore, the respondent's assertion that the respondent company had already acquired the trade secret of this case before the enforcement of the amended Unfair Competition Prevention Act, separate from the above applicant.

2. Whether the manufacturing technology of the applicant company of this case constitutes a trade secret under Article 2 subparagraph 2 of the Unfair Competition Prevention Act, and whether the respondent company infringed on trade secrets (Attorneys Park Il-ho, Counsel for the defendant-appellant, Counsel for the defendant-appellant-appellant-appellee and the defendant-appellant-appellee et al., Counsel for the appeal No. 2)

Article 2 subparagraph 2 of the Unfair Competition Prevention Act provides that "trade secret" means any production method, sale method, and other technical or managerial information useful for business activities, which are not known to the public and has independent economic value, and kept secret by considerable effort. In comparison with records, the court below is just to determine that the product manufactured by the applicant company constitutes trade secret, and there is no error in the misapprehension of legal principles as to trade secret as discussed above.

In addition, according to the records and comparisons, non-applicant 1 was the representative director of the applicant company (see Article 382 (2) of the Commercial Act, Article 681 of the Civil Act), non-applicant 3, non-applicant 4, and non-applicant 5 shall bear the duty to maintain the trade secret of this case for a considerable period of time after retirement from each applicant company in accordance with the covenant and rules of employment as recognized by the court below, and non-applicant 1 shall establish the respondent company for the purpose of producing and selling spin spin sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp.

There is no reason to discuss each of the above issues.

3. Whether paragraph 2 of the Addenda to the Unfair Competition Prevention Act (No. 4478 of December 31, 1991) applies to the time when the respondent company acquired trade secrets (each ground of appeal No. 1 of the respondent's attorney)

Article 2 subparag. 2, subparag. 3, and Chapter 3 (Articles 10 through 14) of the Unfair Competition Prevention Act (Article 10) were newly established on December 31, 191 as Act No. 4478 (hereinafter referred to as the "Revised Unfair Competition Prevention Act"), and Article 2 subparag. 2 of the Addenda of the amended Unfair Competition Prevention Act (Article 1 of the Addenda of the amended Unfair Competition Prevention Act) provides that each of the above newly established provisions shall enter into force on December 15, 192. Article 2 of the Addenda of the amended Unfair Competition Prevention Act provides that "The amended provisions of Articles 10 through 12 and Article 18(1) subparag. 3 of the amended Unfair Competition Prevention Act shall not apply to the act of infringement of trade secrets committed before this Act enters into force. The same shall apply to an act of a person who acquired or used trade secrets before this Act enters into force."

However, the original acquisition and use are different from the expression itself, and Article 2 subparagraph 3 (a) through (f) of the amended Unfair Competition Prevention Act also lists the types of infringement of trade secrets and prescribes the distinction between the acquisition of trade secrets and the use of trade secrets.

The acquisition of a trade secret may be conducted in the form of acquiring the possession of fluids, such as documents, drawings, photographs, recording tapes, films, and files prepared in a form that can be processed by the electronic data processing system, and it may be done in the form of directly recognizing and memorying the trade secret itself without acquiring the possession of the fluids, and may also be made in the form of employing a person who knows the trade secret. If a company becomes in a situation that makes it possible to create and use the trade secret as one of its own in any case or through social norms, it shall be deemed that the company acquired the trade secret unless there are special circumstances (see Supreme Court Decision 96Da1605 delivered on December 23, 196). Meanwhile, the use of the trade secret, depending on the original purpose of the use of the trade secret, refers to the act of directly or indirectly using it in business activities such as production and sale of goods, or in use in research and development projects, etc., and it can be said that a specific act may be done.

However, according to the court below's decision, non-applicant 1 was employed as representative director of the applicant company, and was appointed as representative director on August 31, 1992 prior to the enforcement of the amended Unfair Competition Prevention Act, and the defendant was also employed in the applicant company as the business of the respondent company for the purpose of producing and selling the above Sfin paper paper as the business of the respondent company prior to the enforcement of the above Act, and the non-applicant 3, non-applicant 4, and non-applicant 5 were retired from the applicant company or were aware of core technology, and entered the respondent company. Accordingly, the respondent company was equipped with manufacturing facilities based on data and knowledge about Sfin paper paper manufacturing technology that the above non-applicant company had the representative director or employee. Thus, the respondent company should be deemed to have obtained the trade secret of this case at the latest.

On the other hand, the court below found that "the applicant and the non-applicant provided the sample of Sfin-type spion spion spion spion spion spion spion spion spion spion sp. on November 11, 1992" to be "the non-applicant and the non-applicant 1, non-applicant 3, non-applicant 4, and non-applicant 5 provided the non-applicant spon spon spion spion spion sp. sp. 53-sp. 51, which are the evidence and evidence adopted or not rejected by the court below and the testimony of the non-applicant spin spion spion spion sp. sp. sp. sp. sp. sp. sp. sp. sp. to the non-applicant corporation and the non-applicant sp.

Ultimately, Article 10 of the amended Unfair Competition Prevention Act cannot be applied to the respondent's act of using the trade secret of this case before the enforcement of the amended Unfair Competition Prevention Act.

Nevertheless, the court below concluded that the respondent company cannot be deemed to have obtained the trade secret of this case prior to the enforcement of the amended Unfair Competition Prevention Act, and held that the applicant's application for provisional injunction of this case based on Article 10 of the Unfair Competition Prevention Act should be accepted. The court below erred by misunderstanding facts against the rules of evidence or by misapprehending the legal principles on the acquisition and use of trade secret under the amended Unfair Competition Prevention Act. There are grounds for appeal pointing this out.

4. Therefore, without considering the remaining grounds of appeal by the respondent's agent, the judgment below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Final Young-young (Presiding Justice)