영업비밀유지의무와 전직금지기간

Abstract

To the protect trade secrets, the first issue to discuss is the rational of the protection of trade secrets. Traditionally, the property rule was developed and then confidential rule was proposed to the rational of the protection of trade secrets. However, both doctrines have some points. As regard to the duration of injunction to the non-disclosure of trade secrets, Shellmar, Conmar and Winston rule are suggested by the courts. The philosophy of the Shellmar rule is to protect the owner of trade secrets stronger than other rules. Under the Shellmar, the infringer is permanently enjoined from ever using the trade secret. The Conmar rule has been based on the encouragement of the development of technology by allowing the party liable for misappropriation use of trade secrets after the discloser of trade secrets. The middle ground of both rule is the Winston rule proposed by the 9th Circuit. This rule is also called as Head Start rule. It allows injunctive relief to be continued until the trade secret is disclosed to the public domain, plus an additional amount of time equal to the time it would take the infringer to be able to develope the secret. There is no dominant rule. However, our court takes the Winston rule. Sometimes, a perpetual injunction is awardable to the party liable for misappropriation. The courts of Korea takes the Winston rule. However, the Winston rule should be a base line to protect trade secrets. Where intentional or malicious infringement, the infringer of trade secrets should be permanently enjoined not to disclose or use the trade secrets. However, the non-competition clause should be examined by reasonable standard because the clause may limit a fundamental right.