영업비밀보호법 실무(지식재산연구총서 9)(양장본 Hardcover)
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기업의 영업비밀이 누설될 경우에는 혁신 기술에 의한 기업의 이윤은 특허권에 의해서만 창출되고 그 이윤은 최소치가 되며, 기업의 영업비밀 누설이 클수록 그 이윤은 크게 감소할 것이다.
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Ⅰ. 영업비밀 보호 일반론
1. 영업비밀 보호제도 일반 ·························································· 8
(1) 영업비밀의 보호와 입법 배경 ·················································· 8
(2) 영업비밀 보호제도의 특성 ····················································· 10
(3) 타 법률과의 관계 ··································································· 12
2. 영업비밀의 개관 ··································································· 14
(1) 영업비밀의 개념 및 의의 ······················································· 14
(2) 영업비밀 보호제도의 목적 및 취지 ········································ 15
3. 영업비밀의 법적 성격 ··························································· 18
(1) 본질에 관한 학설 및 비교 ······················································ 19
(2) 판례를 통해 본 학설 적용 ······················································ 21
(3) '공유재의 비극'을 통해 살펴본 영업비밀 관리 ······················· 23
(4) 공익을 위한 영업비밀 사용의 합헌성 검토 ···························· 25
Ⅱ. 영업비밀의 종류와 요건
1. 영업비밀의 종류 ··································································· 28
(1) 기술, 경영 정보 ······································································ 28
(2) 제품 ······················································································· 29
(3) 제조법 ···················································································· 30
(4) 혼합물·화합물 ····································································· 31
(5) 제조시설의 배치 ···································································· 31
(6) 고객 명부 ··············································································· 31
(7) 연구개발·실험자료 ······························································ 33
(8) 디자인 ···················································································· 33
2. 영업비밀의 요건 ··································································· 33
(1) 영업비밀 요건에 관한 외국 입법례 ········································ 33
(2) 영업비밀 요건에 관한 비교검토 ············································ 39
(3) 영업비밀보호법상의 영업비밀 요건 ······································ 42
(4) '유용성'과 '경제적 가치성'의 중복 혼란 문제 ························· 55
(5) '판매방법' 예시의 타당성 여부 ··············································· 56
Ⅲ. 영업비밀의 경제적 가치와 특정
1. 영업비밀의 경제적 가치 ························································ 58
(1) 영업비밀의 중요성 및 그 경제적 가치 ··································· 58
(2) 영업비밀 보호에 의한 기업이윤 창출 ···································· 60
(3) 강력한 보호법에 의한 영업비밀괴물 등장 가능성 ················· 62
2. 영업비밀의 특정 ··································································· 66
(1) 영업비밀 특정 필요성 ···························································· 66
(2) 영업비밀 특정에 관한 우리 판례의 태도 ······························· 67
(3) 비밀 정보의 유형별 차별화 ···················································· 69
(4) 비밀유지명령제도 ·································································· 70
Ⅳ. 영업비밀의 침해
1. 영업비밀 침해 ······································································ 73
(1) 내부자에 의한 침해 ································································ 73
(2) 외부인에 의한 침해 ································································ 74
(3) 계약 관계자에 의한 침해 ······················································· 74
2. 영업비밀 침해행위 유형 ························································ 74
(1) 부정취득 행위 ········································································ 77
(2) 부정취득자로부터의 악의취득 행위 ······································ 79
(3) 부정취득행위에 관한 사후적 관여행위 ·································· 80
(4) 부정공개 행위 ········································································ 81
(5) 부정공개자로부터의 악의취득 행위 ······································ 82
(6) 부정공개행위에 관한 사후적 관여행위 ·································· 83
(7) 선의자 특례 ··········································································· 84
3. 영업비밀 침해행위 유형 사례 및 관련 판례 ··························· 85
(1) 영업비밀 침해행위 유형 사례 ················································ 85
(2) 영업비밀 침해 관련 판례 ······················································· 93
Ⅴ. 영업비밀의 침해 구제
1. 영업비밀 침해에 대한 민사적 구제 ······································ 107
(1) 침해 금지 및 예방청구권 ····················································· 107
(2) 전직금지 청구권 ·································································· 108
(3) 폐기, 제거 등 청구권 ···························································· 109
(4) 손해배상 청구권 ·································································· 109
(5) 신용회복 청구권 ·································································· 110
(6) 부당이득반환 청구권 ··························································· 110
(7) 비밀유지명령 청구권 ··························································· 111
2. 영업비밀 침해에 대한 형사적 구제방법 ······························· 111
(1) 형사적 대응의 전개 ······························································ 113
(2) 영업비밀보호법상 형사처벌 규정의 변화 ···························· 114
(3) 영업비밀 부정취득, 사용, 누설죄의 구성요건 ····················· 114
(4) 일반 형법에 의한 대응 ························································· 115
3. 영업비밀 선의 취득자에 대한 특례 ······································ 116
4. 산업기술 보호의 의의와 필요성 ·········································· 117
(1) 산업기술 보호 필요성 ·························································· 117
(2) 산업기술보호법의 기본체계 ················································ 119
(3) 영업비밀보호법과의 관계 ···················································· 120
5. 산업기술의 유출 및 침해 금지 ············································· 122
(1) 산업기술의 유출 및 침해 행위 ············································· 122
(2) 침해금지 및 벌칙 ································································· 123
Ⅵ. 영업비밀보호법의 국제 규범
1. 미국 산업스파이방지법(EEA) 개정 동향 ······························· 126
2. 미국 통일영업비밀보호법 제정 및
국제무역위원회(ITC) 제재 ···················································· 128
3. 중국과 일본에서의 영업비밀 보호 ······································· 129
4. 국제협약에 의한 영업비밀 보호 동향 ··································· 133
(1) 파리협약 ·············································································· 133
(2) TRIPs 협정 ··········································································· 134
(3) 북미자유무역협정(NAFTA) ·················································· 135
Ⅶ. 선사용권과 영업비밀보호와의 관계
1. 선사용권과 원본증명제도 ··················································· 138
2. 미국의 선사용권 확대 적용에 따른 영업비밀의 중요성 대두 ··· 141
3. 영업비밀에 관한 분쟁조정제도 ··········································· 143
Ⅷ. 기업의 영업비밀 관리 체계 및 보호 대책
1. 기업의 영업비밀 관리체계 수립 ·········································· 145
(1) 기본 방침 ············································································· 145
(2) 실시 계획 ············································································· 145
(3) 기업 업무 프로세스별 영업비밀 관리 및 보호 ····················· 146
2. 기업의 영업비밀 관리 및 보호 대책 ····································· 151
(1) 관리규정 제정 ······································································ 151
(2) 영업비밀 분류 및 표시 ························································· 152
(3) 접근권한자 지정 ·································································· 152
(4) 인적 관리 ············································································· 153
(5) 거래처 관리 ·········································································· 154
(6) 협력업체 등 외부 보안 관리 ················································· 155
(7) 제품 구매자 및 관계기관 등의 보안 관리 ···························· 155
(8) 서류 및 전자매체의 관리 ····················································· 155
3. 기업의 영업비밀 관리규정 표준 제정안 ······························· 156
(1) 영업비밀 관리규정(안) ························································ 157
(2) 시스템 보안 규정 ································································· 175
▨ [부록 1] 표준서식 / 185
▨ [부록 2] 부정경쟁방지 및 영업비밀보호에 관한 법률 / 234
▨ 찾아보기 / 253
Ⅰ. 영업비밀 보호 일반론
1. 영업비밀 보호제도 일반 ·························································· 8
(1) 영업비밀의 보호와 입법 배경 ·················································· 8
(2) 영업비밀 보호제도의 특성 ····················································· 10
(3) 타 법률과의 관계 ··································································· 12
2. 영업비밀의 개관 ··································································· 14
(1) 영업비밀의 개념 및 의의 ······················································· 14
(2) 영업비밀 보호제도의 목적 및 취지 ········································ 15
3. 영업비밀의 법적 성격 ··························································· 18
(1) 본질에 관한 학설 및 비교 ······················································ 19
(2) 판례를 통해 본 학설 적용 ······················································ 21
(3) '공유재의 비극'을 통해 살펴본 영업비밀 관리 ······················· 23
(4) 공익을 위한 영업비밀 사용의 합헌성 검토 ···························· 25
Ⅱ. 영업비밀의 종류와 요건
1. 영업비밀의 종류 ··································································· 28
(1) 기술, 경영 정보 ······································································ 28
(2) 제품 ······················································································· 29
(3) 제조법 ···················································································· 30
(4) 혼합물·화합물 ····································································· 31
(5) 제조시설의 배치 ···································································· 31
(6) 고객 명부 ··············································································· 31
(7) 연구개발·실험자료 ······························································ 33
(8) 디자인 ···················································································· 33
2. 영업비밀의 요건 ··································································· 33
(1) 영업비밀 요건에 관한 외국 입법례 ········································ 33
(2) 영업비밀 요건에 관한 비교검토 ············································ 39
(3) 영업비밀보호법상의 영업비밀 요건 ······································ 42
(4) '유용성'과 '경제적 가치성'의 중복 혼란 문제 ························· 55
(5) '판매방법' 예시의 타당성 여부 ··············································· 56
Ⅲ. 영업비밀의 경제적 가치와 특정
1. 영업비밀의 경제적 가치 ························································ 58
(1) 영업비밀의 중요성 및 그 경제적 가치 ··································· 58
(2) 영업비밀 보호에 의한 기업이윤 창출 ···································· 60
(3) 강력한 보호법에 의한 영업비밀괴물 등장 가능성 ················· 62
2. 영업비밀의 특정 ··································································· 66
(1) 영업비밀 특정 필요성 ···························································· 66
(2) 영업비밀 특정에 관한 우리 판례의 태도 ······························· 67
(3) 비밀 정보의 유형별 차별화 ···················································· 69
(4) 비밀유지명령제도 ·································································· 70
Ⅳ. 영업비밀의 침해
1. 영업비밀 침해 ······································································ 73
(1) 내부자에 의한 침해 ································································ 73
(2) 외부인에 의한 침해 ································································ 74
(3) 계약 관계자에 의한 침해 ······················································· 74
2. 영업비밀 침해행위 유형 ························································ 74
(1) 부정취득 행위 ········································································ 77
(2) 부정취득자로부터의 악의취득 행위 ······································ 79
(3) 부정취득행위에 관한 사후적 관여행위 ·································· 80
(4) 부정공개 행위 ········································································ 81
(5) 부정공개자로부터의 악의취득 행위 ······································ 82
(6) 부정공개행위에 관한 사후적 관여행위 ·································· 83
(7) 선의자 특례 ··········································································· 84
3. 영업비밀 침해행위 유형 사례 및 관련 판례 ··························· 85
(1) 영업비밀 침해행위 유형 사례 ················································ 85
(2) 영업비밀 침해 관련 판례 ······················································· 93
Ⅴ. 영업비밀의 침해 구제
1. 영업비밀 침해에 대한 민사적 구제 ······································ 107
(1) 침해 금지 및 예방청구권 ····················································· 107
(2) 전직금지 청구권 ·································································· 108
(3) 폐기, 제거 등 청구권 ···························································· 109
(4) 손해배상 청구권 ·································································· 109
(5) 신용회복 청구권 ·································································· 110
(6) 부당이득반환 청구권 ··························································· 110
(7) 비밀유지명령 청구권 ··························································· 111
2. 영업비밀 침해에 대한 형사적 구제방법 ······························· 111
(1) 형사적 대응의 전개 ······························································ 113
(2) 영업비밀보호법상 형사처벌 규정의 변화 ···························· 114
(3) 영업비밀 부정취득, 사용, 누설죄의 구성요건 ····················· 114
(4) 일반 형법에 의한 대응 ························································· 115
3. 영업비밀 선의 취득자에 대한 특례 ······································ 116
4. 산업기술 보호의 의의와 필요성 ·········································· 117
(1) 산업기술 보호 필요성 ·························································· 117
(2) 산업기술보호법의 기본체계 ················································ 119
(3) 영업비밀보호법과의 관계 ···················································· 120
5. 산업기술의 유출 및 침해 금지 ············································· 122
(1) 산업기술의 유출 및 침해 행위 ············································· 122
(2) 침해금지 및 벌칙 ································································· 123
Ⅵ. 영업비밀보호법의 국제 규범
1. 미국 산업스파이방지법(EEA) 개정 동향 ······························· 126
2. 미국 통일영업비밀보호법 제정 및
국제무역위원회(ITC) 제재 ···················································· 128
3. 중국과 일본에서의 영업비밀 보호 ······································· 129
4. 국제협약에 의한 영업비밀 보호 동향 ··································· 133
(1) 파리협약 ·············································································· 133
(2) TRIPs 협정 ··········································································· 134
(3) 북미자유무역협정(NAFTA) ·················································· 135
Ⅶ. 선사용권과 영업비밀보호와의 관계
1. 선사용권과 원본증명제도 ··················································· 138
2. 미국의 선사용권 확대 적용에 따른 영업비밀의 중요성 대두 ··· 141
3. 영업비밀에 관한 분쟁조정제도 ··········································· 143
Ⅷ. 기업의 영업비밀 관리 체계 및 보호 대책
1. 기업의 영업비밀 관리체계 수립 ·········································· 145
(1) 기본 방침 ············································································· 145
(2) 실시 계획 ············································································· 145
(3) 기업 업무 프로세스별 영업비밀 관리 및 보호 ····················· 146
2. 기업의 영업비밀 관리 및 보호 대책 ····································· 151
(1) 관리규정 제정 ······································································ 151
(2) 영업비밀 분류 및 표시 ························································· 152
(3) 접근권한자 지정 ·································································· 152
(4) 인적 관리 ············································································· 153
(5) 거래처 관리 ·········································································· 154
(6) 협력업체 등 외부 보안 관리 ················································· 155
(7) 제품 구매자 및 관계기관 등의 보안 관리 ···························· 155
(8) 서류 및 전자매체의 관리 ····················································· 155
3. 기업의 영업비밀 관리규정 표준 제정안 ······························· 156
(1) 영업비밀 관리규정(안) ························································ 157
(2) 시스템 보안 규정 ································································· 175
▨ [부록 1] 표준서식 / 185
▨ [부록 2] 부정경쟁방지 및 영업비밀보호에 관한 법률 / 234
▨ 찾아보기 / 253
저자
저자
김병남
저자 김병남은 KAIST 기계공학과 박사
변리사
특허청 심사관, 심판관, 대법원 근무
현재 단국대학교 공과대학 교수
현재 단국대학교 지식재산대학원 글로벌지식재산학과 교수
<논문>
ICT메가트렌드에 있어서 영업비밀의 중요성 및 기업의 영업비밀보호활용에 관한 연구
전통지식·유전자원에 대한 국제적 논의동향 및 저작권과 특허권에 의한 보호 전략
층상구조기반의 리튬이차전지용 양극 활물질에 관한 특허정량분석, 특허정성분석
대학생의 일상적 창의성이 기업가정신, 창업의지 및 창업탐색활동에 미치는 영향
미국의 특허 협상 공세가 국내 제약 산업에 미치는 영향에 관한 고찰
한미 FTA 의약품 허가-특허 연계제도 도입으로 인한 관련법 개정 및 그 영향에 관한 고찰
창조경제시대의 원동력 창의성과 특허 진보성과의 관계에 관한 고찰
변리사
특허청 심사관, 심판관, 대법원 근무
현재 단국대학교 공과대학 교수
현재 단국대학교 지식재산대학원 글로벌지식재산학과 교수
<논문>
ICT메가트렌드에 있어서 영업비밀의 중요성 및 기업의 영업비밀보호활용에 관한 연구
전통지식·유전자원에 대한 국제적 논의동향 및 저작권과 특허권에 의한 보호 전략
층상구조기반의 리튬이차전지용 양극 활물질에 관한 특허정량분석, 특허정성분석
대학생의 일상적 창의성이 기업가정신, 창업의지 및 창업탐색활동에 미치는 영향
미국의 특허 협상 공세가 국내 제약 산업에 미치는 영향에 관한 고찰
한미 FTA 의약품 허가-특허 연계제도 도입으로 인한 관련법 개정 및 그 영향에 관한 고찰
창조경제시대의 원동력 창의성과 특허 진보성과의 관계에 관한 고찰
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