퇴직근로자의 정보사용과 업무상배임죄 - 영업비밀분쟁에 관한 새로운 해결방법 -

The 2005 supreme court decision cases show that the court affirmed the person who, having retired and used the technical information, even though it was not trade secrets, shall be punished with a crime of occupational embezzlement, because that is regarded as important business assets. And the recent criminal decisions and practical business shows there are many disputes about the information use between employer and employees, and this case is often referred as the premise principle. But according to the fundamental principle of Intellectual Property Law, the intellectual property which can be defined as a private domain by regulations can take the monopoly rights, and the other technical information can be allowed to be used by people. Korean legal system takes the creator protection mandatory as principle and this is to complement business interests of investors and the public. But the case which mentioned above is only weighted toward the company and barely shows regard for the employee who created the technique information. Also, Korean Constitutional Law takes the free competition system not to limit on the fundamental core of the freedom of occupation and commercial trade. This case, however, did not consider the constitutional principles. From the criminal cases and business practices, this case would bring various social harmful effects if it is generalized as the theory. Generally, the information use disputes between the retired employee and the company is filed as civil cases of trade secrets, occupation change prohibition, and etc. Therefore, if this vague judgement standard is applied and helps the company extend monopolies, the jobs for retired employees, freedom of business and rights of information use would be unfairly depressed. Moreover, the company would prefer the criminal complaint to the civil case to oppress retired employees and this would produce side effects which can expand the area of criminal punishment. These are not fit for the essence of disputes. Meanwhile, in regard to the validity and infringement of trade secret, Korean civil ＆ criminal decisions and practical business tends to excessively attach to the requirements for secret supervision. However, the maintenance of trade secret applies to formal factor of valid requirements, and who the real rights for creativity of the technology information has became vested in and how the technology information can be used needs to be considered. Therefore, related legal principles should be established. Unfair Competition Prevention and Trade Secrets Protection Act controls unfair competitions as well as defines that the trade secret is the intellectual property, and when the court tries and judges trade secret cases, the court needs to give earnest consideration to the existence of employee's betrayal. Also, U. S. usurpation of corporate opportunity which has been set up by the precedent set 100 years ago and the doctrine on business opportunity snatch can be applied to the disputes in Korea. In addition, the supreme court decision has some issues in criminal law theory which is related to damages of breach of professional duty. The prosecutor applied this case to breach of professional duty and stated "The retired employee got profits worth about the past company investment. And the company made a loss worth about the future business profit decreases." Judging from the principle on damage of breach of professional duty and the specification theory of indictment object, this statement could be against the law. Also, the damage of information leaks is quite distinct from that of business opportunity snatch, and that case can have an effect on the defense right. Therefore, that the court confirms the essential factors with crossing the both domains without the indictment modification of the prosecutor would not be right.