영업비밀보호를 위한 경업금지와 직무발명자에 대한 정당한 보상의 관계Relationship between a Non-Competition Agreement for Trade-Secret Protection and Reasonable Compensation for an Employee Inventor
- Other Titles
- Relationship between a Non-Competition Agreement for Trade-Secret Protection and Reasonable Compensation for an Employee Inventor
- Authors
- 정차호; 문선영
- Issue Date
- Aug-2009
- Publisher
- 성균관대학교 법학연구원
- Keywords
- 영업비밀; 경업금지; 직업선택의 자유; 직무발명; 정당한 보상; Trade secret; Non-competition agreement; Freedom of occupation; Employee invention; Reasonable compensation.; Trade secret; Non-competition agreement; Freedom of occupation; Employee invention; Reasonable compensation.
- Citation
- 성균관법학, v.21, no.2, pp.677 - 704
- Journal Title
- 성균관법학
- Volume
- 21
- Number
- 2
- Start Page
- 677
- End Page
- 704
- URI
- https://scholarworks.sookmyung.ac.kr/handle/2020.sw.sookmyung/17520
- DOI
- 10.17008/skklr.2009.21.2.026
- ISSN
- 1229-943X
- Abstract
- Trade secrets can be classified into two categories: technical
information and managemental information. Because a trade secret as
technical information normally could be an employee invention, if a
company enjoys profit due to such an employee invention (trade secret),
regardless of patent application filing, the company should pay reasonable
compensation (corresponding to said profit) to the trade secret creator
(inventor) under Articles 15 and 16 of the Invention Promotion Act. Such
compensation must be continuous as far as the company keeps enjoying
profit, regardless of the employee's retirement.
To prevent an ex-employee from competing against the company, it
may proclaim that she will inevitably disclose or exploit its trade secret.
In other words, the relevant trade secret provides the company with any
kind of economic profit and the competition causes damages to the profit.
In that sense, we can deduce such a conclusion that the company should
pay reasonable compensation (corresponding to said profit) to her (trade
secret creator, inventor). If the company has not payed such compensation,
the non-payment is a good evidence that the trade secret has not provided
the company with profit and there is no legal basis for the company to
file a non-competition suit. If the company files a non-competition suit
admitting that there should have been compensation, it should pay
reasonable compensation against so-far profit and should keep paying
compensation as far as it keeps enjoying profit from the trade secret.
If amount of the compensation is nominal, the court may not approve
requested non-competition. If relevant trade secret must be protected at the
sacrifice of freedom of occupation, exchange of information and free
competition, it should provide the company with more than certain amount
of profit. Therefore, we can conclude that, filing a non-competition suit, a
company should be prepared for paying considerable compensation. So far
a company has nothing to lose upon filing a non-competition suit, in that
sense, such a suit could have been misused. Such misuse may deter
freedom of occupation, exchange of information and free competition. It
may restrain misuse of a non-competition suit to consider reasonable
compensation on a trader secret with regard to the non-competition suit. It
is highly recommended that upon deciding reasonableness of a non-competition
agreement, the court consider existence of reasonable compensation as
well as the value of trade secret protection and freedom of occupation.
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