일본의 근로자의 영업비밀 유지의무에 관한 고찰과 그 시사점

Employees' Responsibility for Protection of Trade Secret in the Post-Employment Context in Japan: Analysis and Implications

Restricting the use of trade secrets that Employees have legitimately acquired during their work in the post-employment context can unfairly limit the Employees' freedom of choosing occupation. When such restrictions are established in Unfair Competition Prevention and Trade Secret Protection Act and work contracts, the restrictions should be carefully designed to prevent unjustifiable restriction of Employees' freedom in selecting occupation. From such perspective, this paper analyzes Unfair Competition Prevention and Trade Secret Act of Japan, where legal system is similar, in the areas of trade secret protection measures and the responsibility for protection of secret in Employment contracts to find legal implications for Korea. The analysis of the Japanese act on the protection of trade secret shows that the Japanese articles of the act include careful and detailed measures to protect Employees' freedom of occupation in the postemployment context. However, the act is problematic as it is based on the responsibility for protection of trade secret in accordance with the principle of good faith. To a certain extent, the Japanese precedents provide criteria of judgment for evaluating the effectiveness for the trade secret articles in contracts. However, the act does not sufficiently support workers' freedom of occupation. The review and analysis reveal that measures for protection of trade secret in Korea's Unfair Competition Prevention and Trade Secret Protection Act is likely to harm Employees' freedom of choosing occupation. Furthermore, lessons from discussions on the responsibility for protection of trade secret in Japanese employment contracts should be applied to the Korean case so that legal interpretations are made cautiously and Employees' freedom of choosing occupation is not illegitimately restricted.