영업비밀 관리성 요건: 객관적 인식을 위한 상당한 노력

A trade secret must comply with three requirements: secrecy, economic value and maintenance. While reasonable efforts to maintain secrecy must be admitted for the maintenance requirement to be fulfilled, it is difficult to determine the level of required reasonable efforts. Regarding that matter, the Korean Supreme Court decided that reasonable efforts requirement is admitted when relevant persons objectively recognize that the information is maintained as secret through “confidential mark”, “access prohibition”, “confidential agreement”, “etcetera.” This paper explains meanings of the decision as follows:First, “reasonable” means “flexible” or “minimum”;Second, the three factors (confidential mark, access prohibition and confidential agreement) are not essential ones to be considered, but one or two factors alone could result in reasonable efforts;Third, matters being included in “etcetera” are suggested;Fourth, determination methods for the three factors are suggested;Fifth, meaning of “objective” recognition is explained;Sixth, meaning of recognition “possibility” is explained;Seventh, burden of proof on objective recognition possibility is discussed. According to such analysis, it is understood that the reasonable efforts suggested by the Supreme Court is not different from minimum efforts. This paper further gives reasons why the Court does not demand strict maintenance but only flexible maintenance.