營業秘密의 保護와 退職 勤勞者의 競業禁止義務 - ‘競業禁止約定’과 不正競爭防止法에 의한 轉職禁止請求 등에 관한 判例 理論을 中心으로 -

It is agreed, without any different view, that employees should bear fiduciary duty derived from their employment contracts or covenants-not-to-compete under the principle of trust and good faith during the term of their employment; provided that opinions on whether the covenants-not-to-compete survive the termination of employment have diverged. However, the covenants-not-to-compete should be enforceable only when there’s an agreement between the employer and the employee, in that covenants-not-to-compete after termination of employment can work basically as direct and comprehensive restrictions on freedom of occupation and right to labor of the employee. Further, even if an agreement on covenants-not-to-compete exists, the enforcement will have to be limited within the reasonable scope necessary to protect the company’s trade secrets. Cases and theories have provided for specific boundaries applied to the restricted interpretation on covenants-not-to-compete, including the existence of the company’s interests worth protecting, the prohibition of excessive infringement on the employee’s right as to the term and the extent of the covenants-not-to-compete. Meanwhile, claim for prohibition of act infringing on trade secret may be sought against any illegal acquisition of the company’s trade secrets in accordance with Article 10 (1) of Unfair Competition Prevention and Trade Secret Protection Act, provided that the relevant requirements, such as the definition on ‘trade secrets’, ‘illegal acquisition’, should be interpreted restrictedly reflecting the intent of the Unfair Competition Prevention and Trade Secret Protection Act. Furthermore, such claim should not be used as a measure to unreasonably curb normal employment activities of companies and transfers of employees.