Lee International

The Supreme Court recently held that, where multiple parties conspire to use trade secrets and exchange trade secrets individually acquired by each participant, the acts of disclosing and acquiring those trade secrets among conspirators may each constitute separate offenses independent of the subsequent use of the trade secrets (Supreme Court Case No. 2025 Do 11906).

On January 15, 2026, the Supreme Court overturned the Seoul High Court’s decision that had acquitted several defendants, including former executives of Company A, who were charged with violating the Unfair Competition Prevention and Trade Secret Protection Act (“UCPA”) through the acquisition and disclosure of trade secrets. In 2022, the defendants leaked Company A’s trade secrets, including grabber source code, circuit diagrams, and bill-of-materials (BOM) data. They also conspired to develop, for a foreign company, a grabber for use in camera module inspection equipment for Apple products using those trade secrets, and exchanged among themselves the trade secrets that each defendant had individually acquired.

The Seoul High Court held that, because the defendants had conspired as joint principals to use the trade secrets acquired by each of them and had exchanged those trade secrets in furtherance of that common objective, the acts of sharing the trade secrets served merely as a means for facilitating the joint use of the trade secrets. Accordingly, the Court concluded that such conduct could not be regarded as the disclosure of trade secrets to a third party or the acquisition of trade secrets from a third party. On this basis, the Seoul High Court found that the defendants could be held liable under the UCPA for the use of trade secrets, but not their disclosure or acquisition.

The Supreme Court, however, reached a different conclusion. It held that where a person, for the purpose of obtaining an improper benefit or causing harm to the trade secret holder, discloses or transfers a trade secret to another person who was previously unaware of the information, absent special circumstances, separate offenses may arise: (i) unlawful disclosure of trade secrets by the person who disclosed or transferred the information, and (ii) unlawful acquisition of trade secrets by the recipient who received or learned the information, both under Article 18 of the UCPA. The Court further clarified that this principle applies regardless of whether the parties conspired to use the trade secrets jointly or actually used them together.

In support of its holding, the Supreme Court provided the following rationale:

(i) The UCPA separately defines the “acquisition,” “use,” “disclosure to a third party,” and “unauthorized release of trade secrets out of a designated place” as distinct and independent offenses;

(ii) The legislative purpose of the 2004 and 2019 amendments to the UCPA was to strengthen protection of corporate trade secrets by expanding the scope of punishable trade secret misappropriation;

(iii) The use of trade secrets does not necessarily require, and is not ordinarily accompanied by, prior disclosure or acquisition of the trade secrets; and

(iv) Treating disclosure or acquisition offenses under Article 18 of the UCPA as inapplicable among individuals conspiring to use trade secrets jointly could lead to unreasonable disparity in punishment. For example, where co-conspirators exchange trade secrets and attempt to use them but ultimately failed to complete such use, only an attempted offense relating to trade secret use may be established, potentially allowing sentence mitigation under the Criminal Act. By contrast, where parties merely exchanged trade secrets without conspiring to use them, completed offenses of disclosure and acquisition would apply without such mitigation. As a result, a person who progressed further toward the actual exploitation of trade secrets could paradoxically receive a lighter penalty.

This decision is expected to significantly broaden the practical scope of trade secret protection in Korea. Conduct that may previously have been viewed solely as the “use” of trade secrets may now be subject to separate liability for disclosure, acquisition, and use, potentially resulting in multiple independent offenses arising from the same course of conduct.

For foreign companies engaged in research and development, joint projects, or recruitment activities involving technologies developed or owned by Korean companies or research institutions, the decision highlights the growing importance of carefully managing the acquisition and sharing of technical information. In particular, companies should conduct appropriate due diligence to confirm that information providers are authorized to disclose the relevant information and that any disclosure is lawful, while also establishing clear contractual safeguards and compliance procedures governing technology transfers and information sharing.