Trade Secrets Protection Act Lawyer
Trade Secrets Protection Act Lawyer | What counts as a trade secret, and what happens when one is taken
The Unfair Competition Prevention and Trade Secret Protection Act (부정경쟁방지 및 영업비밀보호에 관한 법률) protects technical or business information that a company keeps confidential and that has independent economic value from being used or disclosed without authorization. Disputes typically arise when an employee leaves for a competitor with internal data, or when a business partner uses shared information outside the agreed purpose. The same set of facts can trigger a civil injunction and damages claim and a separate criminal investigation, so both the company that lost the information and the person accused of taking it need to understand how "trade secret" is legally defined and how the burden of proof works.
Trade Secrets Protection Act | Civil claim and criminal case run on separate tracks
A single trade secret leak can produce a civil case (injunction, damages) filed by the company and, separately, a criminal investigation triggered by a complaint. They use different standards of proof and different remedies, and a person accused often has to respond to both at once.
| Who files | The company/individual holding the trade secret |
| Standard of proof | Preponderance of evidence (civil) |
| Main remedies | Injunction, destruction, damages |
| Typical duration | Several months to 1–2+ years |
Based on injunctions under 부정경쟁방지 및 영업비밀보호에 관한 법률 제10조 and damages/statutory damages under 제11조 and 제14조의2.
| Who files | Victim's criminal complaint or ex officio investigation |
| Standard of proof | Beyond reasonable doubt |
| Main outcomes | Indictment, fine, or imprisonment |
| Typical duration | Investigation 2–6+ months, then trial |
Penalties under 부정경쟁방지 및 영업비밀보호에 관한 법률 제18조, with enhanced penalties where the secret was intended for use overseas (제18조 제1항).
Trade Secrets Protection Act | What legally qualifies as a 'trade secret'
Not every piece of internal information is a protected trade secret. The Act sets out three cumulative requirements, and most disputes are actually fought over whether these elements are met rather than over whether copying occurred.
The information must not be generally known or readily ascertainable to persons in the relevant industry (부정경쟁방지 및 영업비밀보호에 관한 법률 제2조 제2호). If the same information appears in a patent filing, a published paper, or an employee's general industry know-how, courts are reluctant to treat it as secret.
The information must give the holder a competitive advantage because it is not known to competitors — for example, cost data, customer lists, or a manufacturing process that saves time or money (부정경쟁방지 및 영업비밀보호에 관한 법률 제2조 제2호). Purely personal skill or generic experience an employee accumulated is usually not enough.
The holder must have taken reasonable efforts to keep the information secret, such as access restrictions, NDAs, marking documents as confidential, or IT controls (부정경쟁방지 및 영업비밀보호에 관한 법률 제2조 제2호). Companies that never labeled or restricted the information often lose on this element alone, regardless of how valuable it actually was.
Even if the three elements above are met, liability requires acquisition, use, or disclosure by improper means, or use/disclosure in breach of a duty to maintain secrecy (부정경쟁방지 및 영업비밀보호에 관한 법률 제2조 제3호). Independently developed information that happens to be similar is not misappropriation.
Where these disputes usually get complicated
In practice, litigation rarely turns on a clean admission of copying. It turns on whether the plaintiff can show the information was actually treated as confidential at the time, and whether the defendant's version — that they used general skill, publicly available data, or independently developed material — can be disproven. Documentary evidence of access logs, confidentiality agreements, and the timeline of when the defendant obtained the information tends to decide these cases.
Trade Secrets Protection Act | What the trade secret holder can actually claim
For companies that discover a leak, the first question is what can realistically be obtained through litigation, and how fast.
Injunction to stop use or disclosure
A trade secret holder can seek an injunction against a person who is using, disclosing, or is about to use the trade secret, and request destruction of materials embodying it (부정경쟁방지 및 영업비밀보호에 관한 법률 제10조). Because ordinary litigation takes time, holders often file for a preliminary injunction first to stop the harm before it compounds.
Damages and statutory damages
The holder can claim damages for the actual loss, and the Act allows several ways to calculate that loss, including the infringer's profit from the misuse (부정경쟁방지 및 영업비밀보호에 관한 법률 제14조의2). In cases where actual damages are hard to prove, the court may also award enhanced (treble) damages for willful infringement (제14조의2 제6항).
Evidence collection is often the real battle
Because trade secret misuse is rarely admitted openly, much of the litigation effort goes into forensic review of company devices, access logs, and email records to show when and how the information moved. Courts have also recognized a document production order mechanism to help a holder obtain evidence held by the other side (부정경쟁방지 및 영업비밀보호에 관한 법률 제14조의3).
Trade Secrets Protection Act | Where these disputes typically start
Most cases fall into a small number of recurring fact patterns, and the applicable defenses differ depending on which one applies.
Departing employee cases
A company suspects a former employee took customer lists, source code, or process manuals to a new employer or a competing startup. The employee's defense often centers on distinguishing protected trade secrets from general skill and experience they are entitled to use freely.
Business partner / NDA breach cases
Information shared for a joint venture, supply negotiation, or due diligence ends up used outside the agreed scope. Here the NDA's scope and the actual confidentiality practices at the time of disclosure usually decide the outcome, more than the NDA's wording alone.
Overlap with employment restrictive covenants
Companies sometimes pursue both a trade secret claim and a separate claim for breach of a non-compete or confidentiality agreement. Because non-compete clauses are independently reviewed for reasonableness by courts, the two claims can lead to different outcomes even on the same facts.
Cross-border and technology leakage cases
Where a trade secret is alleged to have been taken for use outside Korea, criminal penalties are enhanced and investigative agencies tend to act more aggressively (부정경쟁방지 및 영업비밀보호에 관한 법률 제18조 제1항). These cases often involve parallel export control or national core technology issues depending on the industry.
Trade Secrets Protection Act | From initial consultation to resolution
Before any filing, the facts are reviewed: what information is claimed as secret, what confidentiality measures existed, and what evidence shows access or use by the other side.
If the holder needs to stop ongoing use immediately, a preliminary injunction application can be filed alongside evidence preservation requests.
Depending on the client's position and goals, a civil suit for injunction and damages, a criminal complaint, or both are prepared and filed.
On the criminal side, the police investigate and prosecutors decide whether to indict; on the civil side, both parties exchange briefs, submit expert opinions if technical issues are involved, and attend hearings.
Cases resolve through settlement, judgment, or in the criminal track through indictment, non-indictment, or trial verdict; the civil and criminal outcomes do not automatically determine each other.
Trade Secrets Protection Act | How fees are typically structured
Generally set based on whether the case is civil, criminal, or both, and on the complexity of the technical or business information involved and the number of parties.
For civil cases, often tied to the amount of damages recovered or the value of the injunction obtained; for criminal defense, tied to the outcome (non-indictment, reduced charge, or sentencing result).
Digital forensic review of devices and servers, and technical expert opinions on whether information meets the trade secret elements, are billed separately from the retainer in most cases.
Filing a preliminary injunction typically involves a separate, smaller fee given the shorter timeline and the security deposit the court may require of the applicant.
※ Costs vary depending on case complexity and specific circumstances; exact fees will be provided during consultation. No specific outcome is guaranteed.
Trade Secrets Protection Act | Self-Check Before You Contact a Lawyer
1️⃣ For companies that suspect a leak
- Can you point to specific documents or files, not just a general sense that 'something was taken'?
- Did you have any written confidentiality policy, NDA, or access restriction covering this information?
- Do you have logs (email, USB, cloud access, printer records) showing when the information was accessed or transferred?
- Is the person still using or disclosing the information now, or did the use already stop?
2️⃣ For employees or new employers accused of misuse
- Was the information you used ever marked confidential or restricted, or was it something you learned as general skill on the job?
- Did you sign an NDA or non-compete, and if so, what exactly does it cover?
- Can you show independent development, public availability, or prior lawful possession of the information?
- Have you received a formal cease-and-desist letter, a civil complaint, or a criminal summons?
3️⃣ For business partners in an NDA dispute
- Does the NDA define what information is covered, and does the disputed information fall within that definition?
- Was the information actually treated as confidential in practice, not just labeled so on paper?
- Did the use occur within or outside the scope of the original agreed purpose?
