영업비밀 침해금지기간 및 경업금지기간의 기산점 및 종점에 관한 연구

A Study on Starting Point & Ending Point of Trade Secret Infringement Injunction Period and Non-competition Injunction Period

This paper discusses starting point and ending point of each injunction period of three different situations, where trade secret injunction is requested, non-competition injunction is requested and both of them are requested. This paper specifies problems in many holdings of Korean courts as the followings: (1) many holdings do not tell the difference between a preventive injunction against future acts and a damages remedy on past acts; (2) notwithstanding breach of a non-competition agreement, the court does not issue an injunction order under the reason that non-competition period has already expired; (3) even though certain information maintains trade secret status, many trade secret injunction orders have an ending point; (4) many holdings do not tell the difference between a non-competition case and a trade secret case. This paper proposes problem-solving jurisprudence as the followings. Firstly, starting point of injunction period shall be the holding day and any day before the holding day cannot be such a starting point. Injunction is remedy against future act after the holding day. On a past act, only damages remedy is available. Secondly, even though non-competition agreement period has expired during court proceeding, the court should, in an appropriate circumstance, issue a non-competition injunction order which starts from the holding day and remains for some period. Such jurisprudence which does not do so may make a non-competition agreement meaningless. Thirdly, in a trade secret infringement injunction order, a perpetual period without an ending point shall be the principle. Only if the defendant clearly proves that the information at issue shall lose its trade secret status in the not-so-distant future, the court may exceptionally set an ending point of the injunction period. Fourthly, the court shall differentiate among a trade secret injunction case, a non-competition injunction case and a case where two injunctions were requested together and shall hold in accordance with character of the request.