영업비밀 보호를 위한 신뢰의무와 손해배상

Abstract

“The Act on the Prevention of Unfair Competition and Protection of Trade Secrets” stipulates the appropriation of trade secrets by intention or gross negligence into six types, and when trade secrets are infringed, injunction and damages are recognized as remedies for them. However, since damages require intention or negligence, it is questionable whether appropriation of trade secrets by negligence can be subject to damages. This is a discrepancy between the provisions of trade secret appropriation and the requirement for damages. In order to resolve this discrepancy, it is necessary to interpret that the provisions on the injunction or damages do not apply to appropriation due to negligence. However, if a person who legitimately acquires a trade secret and has a duty of confidence for the owner of a trade secret violates the trade secret due to negligence, there is a high possibility of liability for damages. In addition, among various types of contracts that burden the parties with the duty of confidence, there is a high possibility that they may be held liable for damages, especially in labor contracts. This is because in addition to the general contractual relationship between the owner and the acquirer of the trade secret, the dependent labor relationship between the employer and the employee overlaps. Furthermore, since the worker bears the duty of loyalty and general confidentiality in the labor contract, even if the worker did not infringe the trade secret intentionally or grossly, the worker may be evaluated as violating the general duty of care in the labor contract, and based on this, liability for damages may be recognized. On the other hand, trade secret owners benefit from using secrets to use workers for business. Therefore, it is unfair for a worker to be liable completely for damages caused by the worker's negligence, considering that the worker's activities related to trade secrets are under the command and supervision by the owner's order. In light of the purpose of the labor law to protect workers, legal regulations that can hold workers heavier responsibility should naturally be interpreted narrowly and strictly. Therefore, even if a worker who has properly acquired trade secrets causes losses to the owner due to negligence while engaged in the owner's business activities, the owner's losses should be assessed according to management risk, and the conducts of workers without intention or gross negligence should be exempted from liability for damages.