Trade Secret Protection and Enforcement in South Korea

Under the Unfair Competition Prevention and Trade Secret Protection Act, a trade secret is information that is not publicly known, has independent economic value, and is managed as secret. It may include manufacturing processes, source code, formulas, designs, customer and pricing data, business plans, research results, and negative know-how.

No registration is required. In an enforcement proceeding, however, the owner must identify the information with sufficient precision and prove that it satisfied the statutory requirements before the alleged acquisition, use, or disclosure.

Secrecy management

Secrecy management is a statutory element. Courts assess the controls actually applied to the information in the circumstances of the business.

A documented program may include:

• a trade secret policy and classification system;
• access limited by role and business need;
• confidentiality notices on files and systems;
• confidentiality obligations in employment, contractor, and commercial agreements;
• authentication, access logs, download controls, and device security;
• controlled repositories for sensitive information;
• physical access and visitor controls;
• procedures for changes in role and termination;
• prompt account deactivation and return or deletion records; and
• periodic training and compliance audits.

The level of control may vary by category. The classification system should assign stronger controls to information of greater sensitivity and value.

Identification of the information

Terms such as “our technology” or “all customer information” do not adequately identify a claimed trade secret. The owner should define the protected information through source-code modules, process parameters, document ranges, or a confidential schedule while avoiding unnecessary public disclosure.

The definition should separate confidential know-how from public information, an employee's general skill, and independently developed material. The owner should also document the economic value attributable to secrecy.

Response to suspected misappropriation

1. Preserve access logs, devices, cloud records, email, and other relevant data.
2. Restrict further access without altering evidence.
3. Appoint a limited legal, security, and business response team.
4. Investigate under a written protocol and lawful authority.
5. Identify the information, acquisition method, use, recipients, and threatened harm.
6. Assess civil, criminal, employment, privacy, and regulatory issues.
7. Consider provisional relief and evidence-preservation measures.

An employer should not access personal accounts, conduct surveillance, or seize devices without legal authority. Unlawful evidence collection may create separate privacy, employment, or criminal liability.

Civil remedies

The Act provides for an injunction against actual or threatened infringement, damages, and measures to restore business reputation. An injunction may include destruction or removal of items used in the infringement when the statutory requirements are met.

For willful trade secret infringement, Article 14-2 permits a court to award up to five times the amount recognized as damages. The fivefold limit applies to conduct beginning on or after August 21, 2024, under the applicable transitional provision. The amount is discretionary and depends on the statutory factors.

Confidentiality protections should be considered during litigation so that evidence submitted to prove the claim does not result in further disclosure.

Criminal liability

Article 18 provides for imprisonment of up to 10 years or a fine of up to KRW 500 million for specified domestic trade secret offenses. Conduct involving use in a foreign country, or knowledge that the trade secret will be used abroad, may be punished by imprisonment of up to 15 years or a fine of up to KRW 1.5 billion. Higher fines tied to the financial gain may apply under the statutory formula.

A criminal complaint may allow investigative measures that are unavailable in a civil action, but the complainant does not control the investigation or prosecution. The submission should identify the trade secret, explain the technical evidence, and connect the conduct to the relevant offense.

Cross-border employment matters

Foreign companies should adapt global confidentiality controls to Korean employment, privacy, and evidence rules. A global confidentiality agreement does not by itself establish how information was managed in Korea. A Korean subsidiary should document what parent-company information it receives, the applicable restrictions, and the systems through which access is provided.

Exit procedures should focus on the return of information and protection of identified trade secrets. Restrictions on later employment or competition require a separate enforceability analysis.

Trade secret and patent protection

A patent requires disclosure and provides a time-limited exclusive right that can be enforced against independent development. A trade secret can remain protected while secrecy continues but does not prevent lawful reverse engineering or independent creation.

Patent protection is generally more suitable for an invention that can be reverse engineered or is likely to be developed independently. Trade secret protection may be suitable for information that can remain concealed and subject to continuing operational control. A single product may rely on both forms of protection.

Official references

• Unfair Competition Prevention and Trade Secret Protection Act
• MOIP trade secret protection information

Related guidance

• Patent Infringement Litigation in Korea: Procedure, Evidence and Remedies
• Evidence Collection for Patent Litigation in Korea
• Korean Customs Recordation and Anti-Counterfeiting Enforcement

This article provides general information and does not constitute legal advice on a specific employment, privacy, civil, or criminal matter.