SOUTH KOREA Law and Practice Contributed by: Dongju Kwon, Changkwon Kim, Sejung Lee and Yoon Sun Kim, Yoon & Yang LLC
• the degree of the misappropriator’s wilfulness or the degree of the misappropriator’s knowl - edge about the risk of damages; • the scale of damages suffered by the owner owing to the misappropriation; • the economic benefits obtained by the misap - propriator from the misappropriation; • the period and frequency of the misappro - priation; • the penalties pursuant to the misappropria - tion; • the misappropriator’s asset status; and • the degree of efforts by the misappropriator for damage relief. Submission of Materials In trade secret misappropriation lawsuits relat - ed to the infringement of business interests, the court may, at a party’s request, order the other party to submit materials necessary for the assessment of damage caused by the misap - propriation (Article 14-3). 7.3 Permanent Injunction Under the UCPA, the trade secret owner (claim - ant) is entitled to claim for injunction against or prevention of misappropriation by the entity that misappropriated or that is intending to misap - propriate trade secrets, as well as for necessary measures to prohibit or prevent misappropria - tion, such as: • the destruction of the object that created the act of misappropriation; • the removal of equipment provided in such misappropriation; or • any other such necessary measures (Article 10). Courts have ruled that a permanent injunc - tion in a trade secret misappropriation case is unacceptable, as it not only has a sanctioning
effect but also runs contrary to the public inter - est of promoting free competition and enabling employees to extract their knowledge and abili - ties. Thus, courts impose a time limit on the per - manent injunction, as explained in 1.9 Duration of Protection for Trade Secrets and 7.1 Prelimi- nary Injunctive Relief . Further, as explained in 3.2 Exit Interviews , in exceptional cases where the parties have a non- compete agreement, the agreement is construed to be valid where the content and term of the agreement is recognised as reasonable or where it is found that a company’s trade secrets cannot be protected without such agreement. 7.4 Attorneys’ Fees In principle, the losing party should pay the litigation costs. Under the CPA, attorneys’ fees should be the costs of the lawsuit up to the limit of the amount as determined by the Supreme Court Rules (Article 109). Therefore, only a part of the winning party’s attorneys’ fees should be directly reimbursed by the losing party. The litigation costs, including attorneys’ fees, are determined in proportion to the amount in controversy. For example, if the amount in con - troversy is KRW100 million, the litigation costs would be about KRW7 million. 7.5 Costs Under the Costs of Civil Procedure Act, the los - ing party bears all civil litigation costs, including: • daily and travel expenses for witnesses, appraisers, etc; • daily allowances required for the court clerk’s evidentiary examination; • special charges for appraisal; • communication costs; and • notification costs.
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