YOON&YANG

In a recent decision (Supreme Court Decision 2025Do13231 rendered on January 15, 2026), the Korean Supreme Court overturned and remanded the appellate court’s ruling, in which the appellate court had denied the establishment of separate offenses of “disclosure” and “acquisition” in addition to the offense of “use” by characterizing the exchange of trade secrets among co-offenders merely as a means of “use.”.

In doing so, the Supreme Court clarified that the acquisition, disclosure, and use of trade secrets may each constitute independent criminal offenses. By recognizing that different forms and stages of misappropriation can give rise to separate criminal liability, the Court articulated a doctrinal framework that permits more stringent and differentiated sanctions depending on the nature and progression of the infringement. The decision therefore carries significant practical implications for trade secret enforcement and corporate compliance.

1. Case Background

2. Supreme Court’s Ruling

3. Significance and Implications

1. Case Background

In this case, the defendants were prosecuted for misappropriating the victim company’s trade secrets for use overseas. As part of the alleged scheme, one defendant, acting in concert with the others, uploaded the misappropriated trade secrets to a NAS server established in Korea, thereby making them accessible to the co-defendants.

The appellate court found that the defendants could be held jointly liable for the “use” of trade secrets in violation of the Unfair Competition Prevention and Trade Secret Protection Act (the “UCPA”). However, it upheld the trial court’s conclusion that the transfer of trade secrets among the co-offenders merely served a means of facilitating such “use” and did not give rise to a separate and independent risk of harm to a legally protected interest. Accordingly, the lower courts declined to recognize separate offenses of “disclosure” and “acquisition.”

2. Supreme Court’s Ruling

The Supreme Court reversed the appellate court’s judgment and held that even the exchange of trade secrets among co-offenders may itself constitute independent offenses of “disclosure” and “acquisition.”

The Court’s principal reasoning was as follows:

✓ Existence of Distinct Statutory Offenses: Article 18 of the UCPA separately criminalizes the “acquisition,” “use,” and “disclosure to a third party” of trade secrets. Accordingly, where a person, for the purpose of obtaining an unlawful benefit, transfers a trade secret to another who was previously unaware of the information, the offenses of “disclosure” and “acquisition” may each be established, regardless of whether the parties conspired or ultimately used the trade secret jointly.

✓ Consideration of Legislative Intent: Amendments to the UCPA have progressively expanded the scope of criminal liability to strengthen the protection of corporate trade secrets. In determining the number and scope of offenses, courts should therefore give full effect to this legislative intent of enhanced protection.

✓ Non-overlapping Relationship with “Use”: The offense of “use” does not necessarily presuppose or require a prior act of “acquisition” or “disclosure.” For example, a person who already possesses or is aware of the relevant information may use the trade secret without engaging in any further act of acquisition.

✓ Fairness and Proportionality in Punishment: If the exchange of trade secrets among co-offenders were not punishable as a separate offense, disparate and anomalous sentencing outcomes could result. For instance, where co-offenders agree to use a trade secret and exchange the information but are apprehended immediately before actual use, the conduct would amount to attempted “use,” which may be eligible for mitigation. By contrast, where individuals merely exchange the trade secret without conspiring to use it, the completed offenses of “disclosure” and “acquisition” would be established, for which mitigation may not be available. This would create the incongruous result that those who conspired to use the trade secret could receive lighter punishment than those who merely exchanged it, thereby undermining fairness and proportionality in sentencing.

3. Significance and Implications

This decision is significant in that it adopts a stage-by-stage approach to trade secret misappropriation and clarifies that different forms of infringing conduct may be evaluated and punished separately. By recognizing that acquisition, disclosure, and use may each constitute independent criminal offenses, the Supreme Court has articulated a clearer analytical framework under which more severe penalties may be imposed depending on the nature and progression of the misconduct.

✓ Expanded Scope of Criminal Liability: In practice, the sharing or transfer of trade secrets among co-offenders for the purpose of “use” had often been subsumed into a single offense of “use.” The Supreme Court’s ruling makes clear that each stage of trade secret misappropriation—acquisition, disclosure, and use—constitutes a legally distinct offense, and that even the sharing or transfer of trade secrets among co-offenders may be punished separately. As a result, the range of applicable charges is broadened, and the overall criminal exposure is likely to increase.

✓ Implications for Corporate Response: In cases involving the misappropriation of trade secrets through internal collusion, companies should closely examine the specific channels, methods and timing of information transfers among the co-offenders. A detailed factual analysis of how and when the trade secrets were shared may enable companies to pursue more substantial criminal liability against the responsible individuals.

Yoon & Yang’s Trade Secret PG operates as a multidisciplinary platform, bringing together professionals with expertise across diverse technical fields, including electronics, machinery, and chemistry. The PG includes former prosecutors from the Industrial Technology Crime Investigation Division, as well as former officials from the Korea Fair Trade Commission and the Ministry of Trade, Industry and Energy, enabling us to provide solutions grounded in deep institutional insight. Yoon & Yang’s Trade Secret PG delivers swift and effective legal services across domestic and international disputes, legal advisory, and regulatory responses involving trade secrets and industrial technologies. To further enhance our capabilities, Yoon & Yang operates both an in-house Digital Forensics Center and a Discovery Center, uniquely positioning us to investigate trade secret leaks and to support clients in cross-border disputes with differentiated expertise and effective solutions.