영업비밀 유출과 업무상 배임죄의 성부

• 영문명: Trade Secret Leak and Breach of Trust : Case #2006do9089 (Ruled on 24 Apr 2008 by the Supreme Court)
• 발행기관: 경희법학연구소
• 저자명: 이우송(Lee, Woo-Song)
• 간행물 정보: 『KHU 글로벌 기업법무 리뷰』제4권 제1호, 201~232쪽, 전체 32쪽
• 주제분류: 법학 > 민법
• 파일형태: PDF
• 발행일자: 2011.06.30

영문 초록

When an employee leaks trade secrets to outsiders, the court generally finds him/her guilty of breach of trust besides violating the Unfair Competition Prevention and Trade Secret Protection Act. To constitute breach of trust, a person who administers another’s business obtains pecuniary advantage or cause a third person to do so from another in violation of ones duty, thereby causes loss to such person(Article 355 and 356 of Criminal Law). In the case, the Supreme Court ruled that the following acts constitute breach of trust: (1) If an employee leaks trade secrets to its competitors or for personal interests without employer’s permission, breach of trust is established when he/she stole secrets out of the company. (2) Even if the leaked information are not trade secrets, it constitutes breach of trust if those information have not been open to public and they are considered a part of major assets of the company which significant amount of time, efforts, and expense were put into. (3) Even if the employee has disclosed trade secrets legitimately, breach of trust is established if he who had the duty to return or destroy trade secrets by the time he quits the job did not act accordingly. The case is meaningful in that it not only reconfirmed the previous position of the Supreme Court towards the establishment of breach of trust as in ruling (1), but also extended its scope to ruling (3) where the trade secrets are leaked legitimately. Furthermore, it filled up a gap where the Unfair Competition Prevention and Trade Secret Protection Act cannot found guilty of the act described in ruling (2). However, it is questionable where the Supreme Court ruled that breach of trust is established when an employe stole trade secrets out of the company. If we follow the Court’s position, it becomes impossible to find those who acquire trade secrets after the steal happened guilty of both receiving stolen goods and accomplice of breach of trust. The Court interprets the financial damages as not only actual damages but also where the danger of financial damages is inflicted upon. However, such danger should be restrictively defined as where the probability of causing damages is high and definite. Thus it is reasonable to say that the definite danger occurs when the trade secrets are leaked to its competitors, and breach of trust is established accordingly.

목차

[사건의 개요]

I. 공소사실의 요지

II. 원심의 판단

III.대법원의 판단

[판례의 연구]

I. 문제의 제기

II. 업무상 배임죄의 성립 여부

III. 형법상 기타 범죄의 성립 여부

IV. 결 론

키워드

영업비밀(trade secret) 기업비밀(business secret) 노하우(know-how) 배임죄(breach of trust) 업무상 배임죄