영업비밀침해에 대한 손해배상의 실제와 개선 필요성 -산정방식을 중심으로-

Despite brief history, trade secret has grown up and competes dominant status of intellectual property protecting industrial technologies with patents. Accordingly, there is growing social concern for introduction of strengthened sanctions like punitive damages against malicious trade secret infringements. However, the essential remedies for trade secret infringement are sufficient compensatory damages even in U.S. which is known for broadly using punitive damages. This article shows how Korea's trade secret infringement unfolds comparing with U.S., how the court measures compensatory damages in trade secret infringement cases, and what is notable pattern and variables in computation of amount of damages awarded through empirical analysis of 57 first courts’ opinions of civil(panel judges) cases granting trade secret damages awards from 2009 to 2016. The results show that damages awards in trade secret infringement cases outnumbers patent infringement cases in amount and compensations and accrue to substantial amount not symbolic nominal damages. However, the process of computation is dominated with not the explicit factors like time period of trade secret, but uncertain and implicit factor known as apportionment which reduces amount of damages awards broadly. Besides, the influence of apportionment overwhelms in malicious infringement cases and improvement of court measuring damages process is needed.