영업비밀의 요건과 업무상 배임죄에 관한 비판적 고찰 —대법원 2011.6.30.선고 2009도3915 판결을 중심으로—

Article 2, Section 2 of Unfair Competition Prevention and Trade Secret Protection Act states that “Trade Secret” means information, including a production method, sale method, useful technical or business information for business activity, that is not known publicly, is the subject of considerable effort to maintain its secrecy and has independent economic value. Particularly, given the article, the “maintaining secrecy” is an important standard of judgment for trade secret. However, recently most courts is applying a crime of occupational breach of trust of the Criminal Act Article 356 to many cases related to infringement of trade secret based on “important business assets” since they strictly determine the standards on the existence of “maintaining secrecy” based on the application of the term “considerable effort”. However, diverse analyses and arguments from a case can be occurred for the abuse of important business assets because the Criminal Act has not clearly defined the meaning of the “important business assets”. According to this situations, it may be actually meaningless to insist on an act of infringement of trade secret based on Article 2, Section 2 of Unfair Competition Prevention and Trade Secret Protection Act. Thus, this paper studies the relations between requirements for trade secret and a crime of occupational breach of trust focusing on the recent Supreme Court Decision No.2009Do3915; June 30. 2011, which has trade secret and important business assets cases in it. Furthermore, this paper insists on relaxing standards of requirements for trade secret and critically analyses and examines the abuse of a crime of occupational breach of trust based on important business assets from the subject case.