move to the right menu  move to the main contents



Jump menu


Home > Supreme Court of Japan


2018 (A) 582

2018.12.03
2018 (A) 582
Keishu Vol. 72, No. 6
Decision upon the case in which the Court determined the existence of the "purpose of wrongful gain" as referred to in Article 21, paragraph (1), item (iii) of the Unfair Competition Prevention Act (prior to amendment by Act No. 54 of 2015)
Case charged for violation of the Unfair Competition Prevention Act
Decision of the Second Petty Bench, dismissed
Tokyo High Court, Judgment of March 20, 2018
Based on the facts of this case (see the text of the decision), such as that an employee, who had been authorized to access data files that were trade secrets and were stored in the server computer of the company where the employee worked, made copies of said data files to the employee's own hard disk immediately before leaving said company and making a career move to another company in the same business, and that said copies were not made for the purpose of performing duties for the company where the employee worked and there are no circumstances hinting any other justifiable purpose, said employee can be considered to have had the "purpose of wrongful gain" referred to in Article 21, paragraph (1), item (iii) of the Unfair Competition Prevention Act (prior to amendment by Act No. 54 of 2015).
Article 21, paragraph (1), item (iii) of the Unfair Competition Prevention Act (prior to amendment by Act No. 54 of 2015)



Unfair Competition Prevention Act (prior to amendment by Act No. 54 of 2015)

(Penal Provisions)

Article 21, paragraph (1), item (iii)

(1) A person who falls under any of the following items shall be punished by imprisonment with work for not more than ten years, a fine of not more than ten million yen, or both:

(iii) a person to whom the owner of a trade secret has revealed the trade secret, and who, for the purpose of acquiring a wrongful gain or causing injury to such owner, obtains the trade secret by any of the following means, in breach of the duty pertaining to the control of the trade secret:

(a) embezzling a medium containing a trade secret, etc. (meaning a document, a drawing, or a data storage medium in which a trade secret is described or recorded; the same shall apply hereinafter in this item) or a property that represents a trade secret;

(b) reproducing a description or a record from a medium containing a trade secret, etc., or a property that represents a trade secret;

(c) not deleting a description or a record that should be deleted from a medium containing a trade secret, etc., and disguising this act as if the description or record in the medium containing the trade secret, etc. had been deleted.
The final appeal is dismissed.
The reasons for a final appeal stated by the counsel, KUMEHARA Kenji, including the argument of violation of a judicial precedent, are substantially arguments of a mere violation of laws and regulations and an erroneous finding of facts, and do not constitute any of the reasons for a final appeal as referred to in Article 405 of the Code of Criminal Procedure.

In consideration of the counsel's arguments, the Court determines, by its authority, whether the "purpose of wrongful gain" as referred to in Article 21, paragraph (1), item (iii) of the Unfair Competition Prevention Act (prior to amendment by Act No. 54 of 2015; hereinafter referred to as the "Act") exists in this case.

1. The summary of the facts of the crime of this case found in the judgment in first instance is as follows.

The accused is a person who worked at Company A, an automobile company engaged in the business of the development, manufacturing, sale, etc. of automobiles (hereinafter referred to as "Company A"), and Company A disclosed to the accused the information concerning Company A's automobile product planning, etc., which Company A kept secret and which was not publicly known, by granting thereto an ID, which was an identification code for accessing such information stored in Company A's server computer, and a password.

(1) On July 16, 2013, the accused, at home, for the purpose of wrongful gain, accessed the aforementioned server computer using the personal computer loaned by Company A, and transferred folders that contained eight data files, etc. including the aforementioned information concerning the automobile product planning, which had been stored in said personal computer in advance, from said personal computer to the accused's own hard disk, thereby making copies of said data files.

(2) On July 27, 2013, the accused, at Company A's technical center, for the purpose of wrongful gain, accessed the aforementioned server computer using said personal computer loaned by Company A, and transferred other folders that contained four data files, etc. including the aforementioned information concerning the automobile product planning, from said server computer to the accused's own hard disk, thereby making copies of said data files.

By doing so, the accused obtained these trade secrets in breach of the accused's legal duties regarding the management of the trade secrets.

2. In the judgment in first instance, the court found that the accused had the purpose of unlawful gain in making copies of the data files mentioned in 1 above, such as utilizing the relevant information as a direct or indirect reference at another company to which the accused was to make a carrier move, and found the facts of the crime mentioned in 1 above. In the judgment in prior instance, the court also upheld this finding of facts.

3. In response, the counsel argues as follows: (i) the making of copies mentioned in 1(1) above was carried out for the purpose of organizing operation-related data, and the making of copies mentioned in 1(2) above was carried out for the purpose of collecting commemorative photographs, and thus, the accused did not have the purpose of utilizing the relevant information as a direct or indirect reference at another company to which the accused was to make a carrier move, when making these copies; (ii) in order to find that the accused had the "purpose of wrongful gain" as referred to in Article 21, paragraph (1), item (iii) of the Act, any purpose that is highly punishable must be found in addition to the absence of a justifiable purpose and reason, and such an ambiguous purpose of utilizing the information as a direct or indirect reference at another company to which one is to make a career move, etc. does not constitute the purpose of wrongful gain.

4. We examine the case on this point. According to the findings of the judgment in first instance upheld by the court of prior instance, as well as the case records, the following facts are found.

(1) At Company A, the accused engaged mainly in product planning operations, but found a job at Company B, another automobile company (hereinafter referred to as "Company B"), and was to leave Company A as of July 31, 2013. At Company B, the accused was supposed to engage in duties overseas, such as the development and planning, etc. of automobiles.

(2) The data files mentioned in 1 above are Company A's original manuals and tool files, materials for management meetings and other meetings, materials on matters to be considered including unreleased product specifications, etc., and all of them had been kept as trade secrets by various methods, such as storing them in Company A's server computer subject to access restriction.

(3) The accused was given a personal computer (laptop; hereinafter referred to as the "company's PC") loaned by Company A, and was authorized to bring out the company's PC and access the corporate network using it from outside the company. On the other hand, at Company A, the accused was prohibited from using the accused's own external recording medium for performing duties for the company or for accessing the corporate network, and also from storing the company's information on the accused's individually owned personal computer or external recording medium.

(4) On July 16, 2013, the accused, at home, made copies of folders that contained the eight data files mentioned in 1(1) above, which were stored in the company's PC, to the accused's own hard disk, and furthermore, on July 18, the accused, at home, made copies of said folders from the accused's own hard disk to the accused's individually owned personal computer (hereinafter referred to as the "accused's own PC"). After that, during the period until July 26, which was set as the last working day at Company A, the accused did not conduct any routine work or remaining work, etc. for Company A by using the aforementioned eight data files for which the accused made copies.

(5) On July 26, 2013, the accused made an offer to the superior to come to the office on the next day (July 27) for the reason of "stowing the accused's personal belongings, etc." and obtained permission to do so. On said day, at Company A's technical center, the accused connected the accused's own hard disk, which the accused brought in there, to the company's PC and attempted to make copies of four folders, in which 5,074 data files in total (volume: about 12.8 GB), including the data files mentioned in 1(2) above, were stored, to the accused's own hard disk, but was able to make copies of only 3,253 data files in the end because the volume of data was huge. Out of these folders, the three folders other than the "photographs of corporate gatherings" folder contained operational information regarding the initial stage of product planning, various survey materials, materials for executive officers' suggestions, etc., respectively, covering the whole process relating to Company A's automobile development from the initial stage of planning operations to the stage immediately before release.

5. The counsel argues that the making of copies mentioned in 1(1) above was carried out for the purpose of organizing operation-related data. However, as mentioned above, there is no fact that the accused performed duties for Company A by using the copies of the data files, and moreover, it is not found to be necessary or reasonable for the accused, who was authorized to use the company's PC outside the company, etc. and actually brought the company's PC back to home on July 16, 2013, as well, to have bothered to make copies of the data files mentioned in 1(1) above from the company's PC to the accused's own hard disk and the accused's own PC in order to perform duties for Company A. Taking these facts into consideration, it is found that the making of copies mentioned in 1(1) above was carried out for a purpose other than performing duties for Company A.

In addition, the making of copies mentioned in 1(2) above is found to have been carried out for a purpose other than performing duties for Company A because it is clear that the accused did not need to perform duties for Company A on the day following the last working day at the company. Incidentally, although the four folders contained image data that can be commemorative photographs as argued by the counsel, such as photographs in the "photographs of corporate gatherings" folder, the number of such image data accounts for a small portion in the whole, and the number of data files on automobile product planning, etc. makes up a significant majority. Moreover, the accused intended to make copies of the full contents of all four folders, which is shown by the fact, for example, that the accused had attempted to make copies of the same four folders two days before (July 25), and did not try to sort out the relevant image data that can be commemorative photographs. In light of these facts, the making of copies mentioned in 1(2) above cannot be considered to have been carried out only for the purpose of collecting commemorative photographs.

6. As mentioned above, the accused made copies of the data files mentioned in 1 above, which were trade secrets of the company where the accused worked, to the accused's own hard disk, immediately before leaving said company and making a career move to another company in the same business. Said making of copies was not carried out for the purpose of performing duties for the company where the accused worked and there are no circumstances suggesting the existence of any other justifiable purpose. According to these facts of the case, it can be reasonably inferred that said copies were made for the purpose of using them for the benefit of the accused him/herself, the company to which the accused was to make a career move or any other third party other than the company where the accused worked, after leaving the company where the accused worked. Therefore, the accused can be considered to have had the "purpose of wrongful gain" referred to in Article 21, paragraph (1), item (iii) of the Act. The determination of the court of prior instance that upheld the judgment in first instance to the same effect as above is justifiable.

Accordingly, in accordance with Article 414 and Article 386, paragraph (1), item (iii) of the Code of Criminal Procedure, the Court unanimously decides as set forth in the main text of the decision.
Justice YAMAMOTO Tsuneyuki

Justice ONIMARU Kaoru

Justice KANNO Hiroyuki

Justice MIURA Mamoru
(This translation is provisional and subject to revision.)