Taking Company Files When You Resign: Breach of Trust in Korea

In Korea, an employee who copies company files for a new job can commit occupational breach of trust at the moment the data is taken out, before anyone uses it or earns anything from it. Returning the files later does not undo the offence; it goes to sentence.

Consultations on this point follow a pattern: someone who worked at the same company for years receives word that a complaint for occupational breach of trust has been filed, and does not recognise the conduct described. Three situations recur — taking company files on resignation, adjusting commercial terms without approval, and using a corporate card for personal spending. The first question is always which offence is alleged.

Embezzlement and breach of trust are not the same charge

Embezzlement under article 355(1) of the Criminal Act covers a person who keeps another's property and embezzles it or refuses to return it. Breach of trust under article 355(2) covers a person handling another's affairs who, by an act contrary to that duty, obtains a benefit for themselves or a third party and causes loss to the principal. Both carry up to five years' imprisonment or a fine up to 15 million won.

Where the conduct arises from the handling of the employer's business, article 356 raises this to up to ten years' imprisonment or a fine up to 30 million won. In short: taking the company's money or property is embezzlement; disposing of matters in a way that breaches your duty and harms the company is breach of trust.

Where the benefit is 500 million won or more, article 3 of the Act on the Aggravated Punishment of Specific Economic Crimes applies: three years or more for 500 million to under 5 billion won, and life imprisonment or five years or more at 5 billion won and above. Fines disappear at that level, so how the amount is calculated can change the character of the entire case.

"The company lost nothing" is not a complete answer

The Supreme Court has held that the loss element in breach of trust includes not only actual loss but also the creation of a risk of actual loss, and that the assessment must be economic rather than legal (Supreme Court, 12 October 2017, 2017Do6151). Replacing the money later, or the contract later turning out to be void, does not by itself establish that no loss occurred.

The same decision set the limit in the other direction. The risk must be concrete and real, at a level comparable to an economic loss actually suffered; a vague possibility is not enough. In that case a sales representative adjusted unit prices without internal approval, and the conviction was quashed because the lower court had misapplied that test. This is where these cases are usually won or lost.

Where taking files becomes a crime

Where an employee discloses trade secrets to a competitor, or removes them for their own benefit, the offence of occupational breach of trust is complete at the moment of removal. The same applies where the material is not a trade secret but constitutes a "major business asset" — information not disclosed to the public generally, which the employer produced with substantial time, effort and expense. It also applies where material was lawfully taken out but the employee, on leaving, breached a duty to return or destroy it, or disclosed it to a competitor (Supreme Court, 24 April 2008, 2006Do9089).

That does not mean every file is protected. The Supreme Court has also held that where a product has been sold publicly without confidentiality measures, information that can readily be obtained through ordinary reverse engineering, without substantial time, effort or expense, is not a major business asset (Supreme Court, 30 June 2022, 2018Do4794).

The dividing questions are therefore concrete: what did the company invest in producing the material, could it be obtained from outside by ordinary means, and were confidentiality measures actually in place and actually applied?

A settlement with the company does not end the case

Occupational breach of trust has no provision making prosecution conditional on the victim's wish. Where the company agrees not to complain, or withdraws a complaint it has already filed, the investigation and any trial can continue regardless. Companies also sometimes file months later.

"I paid it back" and "I returned and deleted the files" must be analysed separately from whether the offence was committed. In a removal case the offence was complete when the data left; restitution is a factor in disposition and sentence. Conversely, failing to return or destroy material is itself a separate route to liability.

Read the complaint before you are interviewed

It is common to attend an interview without knowing what the complaint actually says. Which conduct is charged, and under which offence, changes everything about the case. Whether this is embezzlement or breach of trust, and how the amount was calculated, must be established first.

The provisions look simple on their face, but the scope of the duty, the existence of loss and the character of the material are all contested in practice. The same conduct can end in an acquittal or in an aggravated charge under the specific economic crimes statute. That depends on the complaint, the company's internal rules and the actual scope of the employee's role.

Because the offence turns on Korean concepts of duty and economic loss, foreign employees are often unaware that copying files for a future employer is treated criminally here. If you have been contacted, speak to counsel before any interview. For related reading, see the 2025 fraud sentencing amendment and our page on business disputes in Korea.

Contact Taeshin Law Firm for a confidential consultation in English.