營業秘密의 保護

Abstract

1991년 12월 31일. 영업비밀,보호를 위한 부정경쟁방지법의 개정이 있었다. 이번 개정으로 영업비밀 그자체가 비로소 법의 보호를 받게 되었다. 개정법은 영업비밀을 "공연히 알려져 있지 아니하고 독립된 經濟的 가치를 가지는 것으로서. 상당한 노력에 의하여 秘密로 維持된 生産方法, 販賣方法 기타 영업활동에 有用한 技術上 또는 營業上의 情報를 말한다"고 정의한다( 제2조 2항).

한편 법은 영업비밀침해행위로서 6가지 유형을 열거하고 있다. 그것은 다음과 같다.

1. 霧取. 欺罔, 脅迫 기타 不正한 手段으로 營業秘密을 取得하는 行爲 (이하 "不正取得行 爲"라 한다) 또는 그 取得한 營業秘密을 使用하거나 公開(秘密을 維持하면서 특정인에게 알리는 것을 포함한다. 이하 같다)하는 行爲(제2조 제3호 가)

2, 營業秘密에 대하여 不正取得行爲가 개입된 사실을 알거나 중대한 과실로 알지 못하고 그 營業秘密을 取得하는 行爲 또는 그 取得한 營業秘密을 使用하거나 公開하는 行爲(제2조 제3호 나)

3. 營業秘密을 取得한 후에 그 營業秘密에 대하여 不正取得行爲가 개입된 사실을 알거나 중대한 과실로 알지 못하고 그 營業秘密을 使用하거나 公開하는 行爲 (제2조 제3호 다)

4, 契約關係 등에 의하여 營業秘密을 維持하여야할 義務가 있는 자가 不正한 利益을 얻거나 그 營業秘密의 保有者에게 損害를 가할 목적으로 그 營業秘密을 使用하거나 公開하는 行爲 (제2조 제3호 라)

5. 營業秘密이 위 4의 규정에 의하여 公開된 사실 또는 그러한 公開行爲가 개입된 사실을 알거나 중대한 과실로 알지 못하고 그 營業秘密을 取得하는 行爲 또는 그 取得한 營業?泫价? 使用하거나 公開하는 行爲(제2조 제3호 마)

6 營業秘密을 取得한 후에 그 營業秘密이 위 4의 규정에 의하여 公開된 사실 또는 그러한 公開行爲가 개입된 사실을 알거나 중대한 과실로 알지 못하고 그 營業秘密을 使用하거나 公開하는 行爲 (제2조 제3호 바)

이상의 營業秘密의 侵害행위에 대해서 법은 民事的救濟와 더불어 刑事的救濟를 인정하고 있다. 즉.법은 영업비밀보유자에게 민사적 구제로서 禁止請求權, 損害賠償請求權, 信用回復請求權을 인정하며. 또 기업의 임원 또는 직원으로서 不正한 利益을 얻거나 그 기업에 損害를 가 할 목적으로 그 기업에 특유한 生産技術에 관한 營業精密을 제3자에게 누설한 자는 3년이하의 징역 또는 3천만원 이하의 벌금에 처한다고 규정한다.

For the purpose of protection of trade secrets, unfair competition act was revised at 12/31/1991 This revision act aims to protect trade secrets directly.

The act defines the trade secret as follows.

"Trade secret means that a production method a selling technique and any other technical or management information which is useful in business, that

(1) is not generally known to, and

(2) has independent economic value, and

(3)is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. "

The act lists 6 types of acts of infringement. Those are

(1) acquisition of a trade secret of another by a theft.fraud, threat and other improper means (hereinafter, call them unfair acquisition act') and use or disclosure (including 'giving knowledge to a particular person maintaining its secrecy'. The same shall apply hereinafter) of that acquired knowledge of the trade secret.

(2) acquisition, use or disclosure of the knowledge of the trade secret by the person who, at the time of acquisition, knew or failed to know because of his gross negligence that his knowledge of the trade secret was derived from or through a person who commmitted a unfair acquision act.

(3) use or disclosure of the knowledge of the trade secret by the person who, after acquisition of the knowledge of the trade secret, knew or failed to know because of his gross negligence that his knowledge of the trade secret was derived from or through a person who commmitted a unfair acquision act .

(4) use or disclosure of the knowledge of trade secret. with intention to get illicit gain or to do harm to the owner of the trade secret, by the person who has a duty, basing on contract or etc. to limit its use or to maintain its secrecy.

(5) acquisition use or disclosure of the knowledge of the trade secret by the person who at the time of acquisition knew or failed to know because of his gross negligence that his knowledge of the trade secret was derived from or through a person who violated his duty. described above(4) .

(6) use or disclosure of the knowledge of the trade secret by the person who, after acquisition of the knowledge of trade secret.knew or failed to know because of his gross negligence that his knowledge of the trade secret was derived from or through a person who violated his duty. described above (4) .

In case of infringement. the act provides civil and criminal remedies. As the civil remedies. the act confers the owner of the trade secret the injunctive relief(prohibitory and mandatory), compensatory damages and the right to regain his reputation .

The executive or employee who disclose the trade secret concerning the manufacturing method to the third party with the intention to get the illicit gain or to do harm to the owner of the trade secret shall be punished by a sentence of imprisonment for a term not exceeding 3 years or a fine not exceeding 30.000.000 won .

For the purpose of protection of trade secrets, unfair competition act was revised at 12/31/1991 This revision act aims to protect trade secrets directly.

The act defines the trade secret as follows.

"Trade secret means that a production method a selling technique and any other technical or management information which is useful in business, that

(1) is not generally known to, and

(2) has independent economic value, and

(3)is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. "

The act lists 6 types of acts of infringement. Those are

(1) acquisition of a trade secret of another by a theft.fraud, threat and other improper means (hereinafter, call them unfair acquisition act') and use or disclosure (including 'giving knowledge to a particular person maintaining its secrecy'. The same shall apply hereinafter) of that acquired knowledge of the trade secret.

(2) acquisition, use or disclosure of the knowledge of the trade secret by the person who, at the time of acquisition, knew or failed to know because of his gross negligence that his knowledge of the trade secret was derived from or through a person who commmitted a unfair acquision act.

(3) use or disclosure of the knowledge of the trade secret by the person who, after acquisition of the knowledge of the trade secret, knew or failed to know because of his gross negligence that his knowledge of the trade secret was derived from or through a person who commmitted a unfair acquision act .

(4) use or disclosure of the knowledge of trade secret. with intention to get illicit gain or to do harm to the owner of the trade secret, by the person who has a duty, basing on contract or etc. to limit its use or to maintain its secrecy.

(5) acquisition use or disclosure of the knowledge of the trade secret by the person who at the time of acquisition knew or failed to know because of his gross negligence that his knowledge of the trade secret was derived from or through a person who violated his duty. described above(4) .

(6) use or disclosure of the knowledge of the trade secret by the person who, after acquisition of the knowledge of trade secret.knew or failed to know because of his gross negligence that his knowledge of the trade secret was derived from or through a person who violated his duty. described above (4) .

In case of infringement. the act provides civil and criminal remedies. As the civil remedies. the act confers the owner of the trade secret the injunctive relief(prohibitory and mandatory), compensatory damages and the right to regain his reputation .

The executive or employee who disclose the trade secret concerning the manufacturing method to the third party with the intention to get the illicit gain or to do harm to the owner of the trade secret shall be punished by a sentence of imprisonment for a term not exceeding 3 years or a fine not exceeding 30.000.000 won .