SOUTH KOREA Law and Practice Contributed by: Dongju Kwon, Changkwon Kim, Sejung Lee and Yoon Sun Kim, Yoon & Yang LLC
2. Misappropriation of Trade Secrets
Any person who damages, destroys, or alters another’s trade secret for the purpose of obtain - ing improper benefits or causing damage to the trade secret owner may be punished by impris - onment of no more than ten years and/or a crimi - nal fine not exceeding KRW500 million (Article 18(3)). Further, the UCPA provides penalties for attempt - ed crime, criminal intent, conspiracy, consent or abetting with respect to the crime of trade secret misappropriation (Articles 18-2 and 18-3). Additionally, the UCPA has a joint penalty pro - vision providing that, if the representative of a company, etc, commits the crime of trade secret misappropriation, the company (in addition to the violator) may be subject to a criminal fine (Article 19). 1.15 Extraterritoriality If a trade secret owner is a Korean entity (wheth - er a company or person), the trade secret owner can bring a civil claim in Korea based on misap - propriation that happened overseas. Moreover, if a Korean commits the crime of trade secret misappropriation overseas, they may be subject to criminal proceedings in Korea. In addition, if a foreigner commits such a crime against any Korean entity overseas, they may be subject to criminal proceedings in Korea, unless the act is not subject to criminal penal - ties according to the law of the place of misap - propriation.
2.1 The Definition of Misappropriation The UCPA prohibits each of the various acts in the acquisition and use or disclosure of trade secrets. The UCPA defines trade secret misap - propriation as any of the following six acts (Arti - cle 2(iii)): • acquiring trade secrets by theft, deception, coercion or other improper means ( “improper acquisition” ) or subsequently using or disclos - ing such trade secrets improperly acquired (including informing any specific person of the trade secrets while maintaining secrecy); • acquiring trade secrets with knowledge of the fact that an improper acquisition of trade secrets has occurred or without such knowl - edge due to gross negligence, or thereafter using or disclosing the trade secrets so acquired; • using or disclosing trade secrets, with the knowledge of the fact that an improper acqui - sition of the trade secrets has occurred or without such knowledge due to gross negli - gence, after acquiring them; • using or disclosing trade secrets to obtain improper benefits or to damage the trade secret owner while under a contractual or other duty to maintain secrecy of the trade secrets; • acquiring trade secrets with the knowledge of the fact that they have been disclosed in the manner provided in the preceding point or that such disclosure has been involved, or without such knowledge due to gross negli - gence or, thereafter, using or disclosing the trade secrets so acquired; and • using or disclosing trade secrets, with the knowledge of the fact that they have been disclosed in the manner provided in the fourth
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