퇴직후 경업금지약정과 영업비밀의 보호 - 우리나라와 미국의 판례를 중심으로 -

This article will attempt to summarize the case law about a correlationbetween protecting trade secrets and covenants not to compete in Korea andthe United States. A covenant not to compete is a kind of employment agreementwhose purpose is to restrict an employee’s post-employment activities. Thatcovenants not to compete generally aim to prevent an employee from workingin the employee’s chosen profession, trade, or industry, soliciting a formeremployer’s customers, or hiring the former employer’s employees. In the United States, State Case law imposes three main requirements onwhether a non-compete agreement is enforceable. First, the former employee’spromise not to compete must be reasonably related to an interest worthy ofthe former employer's protection. Some judicial precedents related to noncompetitionagreements held that a covenant not to compete was unenforceablebecause the former employer had no legitimate interest to be protected bythe noncompete agreement. Second, that covenant not to compete mustcontain reasonable restrictions describing the covenant’s geographical limits,restrictive time period, and description of the employee’s activities to berestrained. The main issues are mainly whether both the temporal andgeographic scope of the restraints imposed are grossly excessive. Third,that non-compete must contain reasonable restrictions not to injury to thepublic interests. The Court believes that the public interest is always served in the enforcement of valid restrictive covenants contained in lawfulcontracts. In Korea case law, it is important for employers relying on suchnon-compete clauses in employment agreements to realize that not uncommonly,korean courts disfavor covenants that restrain competition and often refuseto enforce them. Except in very narrow circumstances, the Supreme Courtof Korea usually deem an unreasonable non-compete clauses to violate Article103 of Korea Civil Act under Korea’s public policy that promotes freedomof competition and an employee’s right to move between jobs. Namely, theSupreme Court of Korea mostly hold that such unreasonable non-competeclauses are contrary to good morals and other social order as prescribed byArticle 103 of the Civil Code. In the end, such unreasonable non-competeclauses shall be declared null and void in most cases. In sum, whether in Korea or the United States, the trend in lawsuitsconcerning non-competition agreements are minimizing the restrictions onformer employees, who have found employment in new companies, or havebecome self-employed. After all, on that point, it is the same. And finally, one more act is worthy of note. That is the CalniforniaBusiness and Professions Code section 16600 (“Section 16600”). The Section16600 provides that “every contract by which anyone is restrained from engagingin a lawful profession, trade, or business of any kind is to that extent void.”California courts typically interpret the statute broadly and refuse to enforcecovenants not to compete. Consequently, California courts typically invalidatecovenants not to compete. While it may not be so obvious, though, thereare implications for our optimal IT Environment that is required the mobilityof former employees such as Silicon Valley.