영업비밀 침해행위에 대한 삼배배상제도 연구

Abstract

The Act on Unfair Competition Prevention and Trade Secret Protection(hereinafter "Unfair Competition Prevention Act"), which will be effective since July 9th, 2019, adopted triple damages system against trade secret misappropriators. In other words, In cases where a trade secret misappropriation is deemed intentional, the trade secret misappropriator shall be liable to compensate the injury to the extent not exceeding three times the injury inflicted upon the trade secret possessor. In determining the increased damages, a court shall take the following matters into consideration: (i) the superior status of the misappropriator; (ii) willfulness or the degree to which the misappropriator were aware of possibility of injury; (iii) the degree of the damage of the trade secret possessor caused by the misappropriation; (iv) economic gain that the misappropriator acquired by the misappropriation; (v) the duration and frequency of the misappropriation; (vi) the fine imposed upon the misappropriator for the misappropriation; (vii) the financial status of the misappropriator; and (vi) the degree of the misappropriator’s efforts to remedy the injuries of the trade secret possessor (Article 14 bis (6) and (7) of the Unfair Competition Prevention Act). At the outset, Article 14 bis (1) to (5) of the Unfair Competition Prevention Act need to be explored along with the triple damages in accordance with Article 14 bis (6) of the Act because the increased damages shall be determined based on the damages assessed pursuant to Article 14 (1) to (5) of the Act. In this regard, this paper explains the Japanese law prescribing the similar provisions and the American laws providing different systems and provisions. Next, the factors which a court can take into account to compute the increased damages will be delved into. In this context, following the introduction to the Korean regime on damages, the Article analyzes the American legal regime under which the case law related to exemplary damages has been accumulated from the comparativists' perspective. Thirdly, the Article examines burden of proof in connection with the each factor which the court can take into account to assess the increased damages. Fourthly, it analyzes the effective period of the triple damages in detail. Lastly, it proposes the criteria under which the court can assess the increased damages under the Unfair Competition Prevention Act.