영업비밀보호를 위한 경업금지와 직무발명자에 대한 정당한 보상의 관계

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.