퇴직 종업원에 의한 기술․경영정보의 유출 및 그 구제에 관한 법률문제

The distinction between the employer’s trade secrets․legitimate interests and the employee’s tacit knowledge is crucial as a baseline to render the former employer with protection against the employee’s misappropriation of trade secrets. This article examines the criteria for said distinction and introduces additional criteria found in the judicial practices of major countries such as Germany, the United States, the United Kingdom, and Japan. The majority of commentators and case law deny the application of Article 2, Paragraph 3, Subparagraph d, of the Unfair Competition Act in cases where the employee creates the relevant trade secret, and the rights belong to the employee. However, this does not accord with the stipulations of the provision. The trade secret infringement of said type shall be decided based on the employee’s duty to maintain confidentiality and it is sufficient thereof. In practice, courts apply numbers of criteria when judging the validity of non-compete agreement to guarantee retired employees’ freedom of occupational choice. This article introduces various additional criteria found in several major countries in the perspective of comparative law. In addition, even if the use of information by a retired employee constitutes an infringement of the employer’s trade secrets or legitimate interests, injunctive relief may be limited depending on the circumstances. This article examines the basis of justification for such restrictions and reviews the practices of foreign countries such as the United States and European countries that are supportive to this approach.