퇴사한 직원들의 기술자료 반출행위와 배임죄 성부- 영업상 주요한 자산의 개념을 중심으로 -

Abstract

It is matter that former employee leaking sales material and information can be charged with professional misappropriation under criminal law code 365. Misappropriation means Negligence or misconduct by a professional person representing business for clients or employers. The failure to meet a standard of care or standard of conduct that is recognized by a profession reaches the level of misappropriation when a client or employer is injured or damaged because of error. One issue is whether a former employee leaking trade secret and materials which is important property in the company after retiring the company is “the person representing business for clients or employers”. However, it is not manifest standard over the subject of misappropriation in criminal law. If a natural purpose of misappropriation is blaming the person on braking unfaith(The theory of betray), the person representing other’s office works can be recognized by the subject of misappropriation. The other issue is whether former employees who take an action leaking technology materials injure property of former company. The Supreme Court ruled misappropriation, if the leaking materials and information is the most important and indispensable in victim companies, the action has possibility of injuring or damaging property at least. While I have no doubt that invasion of business secret is loss of victim company, I have a doubt that leaking materials can be considered by important property in business. Because it is difficult that materials not to maintain in a secret condition can injure property of company. Therefore the action leaking sales secret can be charged with misappropriation after retiring, however it is not certain that materials not to maintain in secret condition are considered “important of property in business”, and it is not easy that the intention of misappropriation is proved.