A. The defendant shall not engage in any of the following acts within the broadcasting zone of each plaintiffs listed in the separate sheet:

(1) Connection the plaintiffs with advertising video transmission equipment without the plaintiffs' consent to connect to the "the cable broadcasting and credit hacks" owned by the plaintiffs

(2) Processing and altering broadcasting signals transmitted by the plaintiffs using the above advertising video transmission devices

B. The defendant shall not allow a third party to perform any act set forth in the subparagraphs of the above paragraph (1).

C. Where the defendant violates the obligations of the above A and B, the amount of KRW 5,000,000 per day shall be paid to each plaintiff who runs the place of violation as its broadcast area.

D. The plaintiffs' remaining claims are dismissed.

2. The defendant's appeal is dismissed.

3. The total costs of the lawsuit are ten minutes, which are one of which are borne by the plaintiffs, and the remainder by the defendant.

In the case of violation of the obligations of paragraphs (a) and (b) of this Article and paragraphs (1) and (2) of this Article, the judgment ordering each plaintiff to pay KRW 100,000,000 per time of violation to each plaintiff whose place of violation is its broadcast area.

2. Purport of appeal

Plaintiffs: (a) The decision of the first instance court is changed to pay KRW 100,000,00 per time of each violation to each Plaintiff, whose place of violation is its broadcast area, where the Defendant violated the obligations of subparagraph 1-A, (b), and subparagraph 1-A, and (b) of the disposition.

Defendant: The part against Defendant among the judgment of the first instance court is revoked, and the plaintiffs' claims corresponding to the above revocation are dismissed.

The following facts are not disputed between the parties, or may be acknowledged by considering the whole purport of the pleadings in each entry of Gap evidence 1 through 4 and 7 (including each number; hereinafter the same shall apply).

A. The Plaintiffs are CATV broadcasting business operators who operate CATV broadcasting in each broadcasting zone with permission for CATV broadcasting business under the Broadcasting Act, and the Defendant is a company that operates advertising service business through television.

B. The Defendant, among the subscribers of the Plaintiff’s composite cable broadcasting, recruited as its members the counterpart companies for many unspecified customers, such as restaurants and soup, and connects the individual television set owned by the relevant members and the advertising video transmission equipment owned by the Defendant (hereinafter “CF saw”) with the “CF saws” owned by the Plaintiffs, and then shows a certain part of the television screen at the bottom of the television screen (around 11.6% of the screen is recognized by the Defendant) formed by adjusting the cross-breadth ratio of the broadcast program transmitted by the Plaintiff during the broadcast process, at the request of the advertiser separately recruited by the Defendant (hereinafter “instant commercial caption”), and operates a business in such a way that the Defendant receives compensation from the said advertiser.

C. The Defendant entered into a branch contract with a third party, and the branch business operator entered into a contract for the instant commercial caption service with a restaurant, a soup, etc. (hereinafter “installer”), and accordingly, the branch business operator set up the CF Park at no cost at the establishment company and provided a commercial caption among the installation companies free of charge.

2. The assertion and judgment

A. The parties' assertion

(1) The plaintiffs

(A) The Plaintiffs are CATV broadcasting business operators licensed for CATV broadcasting business under Article 9(2) of the Broadcasting Act, and have the right to broadcast without being disturbed by other persons within the scope prescribed by the Broadcasting Act. This includes the right to prevent broadcasting signals transmitted by the Plaintiffs from being processed and altered by a third party against the intent of the Plaintiffs. However, without the Plaintiffs’ consent, the Defendant’s processing and alteration of the Plaintiffs’ broadcasting signals by linking the Defendant’s CF Park to the three saws owned by the Plaintiffs constitutes an infringement of the Plaintiffs’ broadcasting right, and thus, constitutes a tort, thereby excluding the infringement.

(B) In addition, since the plaintiffs' broadcasting signals are owned and managed by the plaintiffs, and the three saws installed by the plaintiffs to the subscribers of composite cable broadcasting are owned by the plaintiffs, the defendant's act of processing and altering the plaintiffs' broadcasting signals by linking them to the three saws owned by the plaintiffs without the plaintiffs' consent constitutes an infringement of the plaintiffs' right to possession and management of the broadcasting signals and three saws, and the plaintiffs seek the prohibition of the infringement pursuant to Article 214 of the Civil Act.

(2) Defendant

(A) The defendant only adjusted the cross-breadth ratio of the plaintiffs' broadcast program screen by using CF gamblings, and did not remove or modify the plaintiffs' broadcast program screen pictures. Thus, it does not process or alter the plaintiffs' broadcast signal.

(B) As a subject to the Broadcasting Act’s regulation and protection, the term “broadcasting” does not directly refer to “broadcast programs”, and thus, does not include the content of the broadcasting rights recognized under the Broadcasting Act to prevent the processing and alteration of broadcasting signals, as they are not “signals or radio waves transmitted by broadcasting stations.”

(C) CFboxes are not affected by the process of receiving, destroying, and transmitting video signals, which are the original function of the CFWS, nor does they cause any change in the functions, structure, or form of the CFWS, and thus do not infringe on the ownership or the right to use management of the CFS.

B. Determination

(1) Whether tort was established

(A) According to the provisions of the Broadcasting Act, the purpose of the Broadcasting Act is to guarantee the freedom and independence of broadcasting (Article 1), guarantee the freedom and independence of broadcasting programming (Article 4), and a person intending to engage in CATV broadcasting business shall obtain permission from the Korea Communications Commission with certain facilities and technology (Article 9(2)), and the Korea Communications Commission may grant the right to operate a business within a certain broadcasting area (hereinafter “regional business privilege”) when granting permission for CATV broadcasting business (Article 12(1)). In full view of these provisions, the Broadcasting Act provides for strict requirements for permission for a CATV broadcasting business, standards and procedures for CATV broadcasting business, thereby ensuring the sound development of CATV broadcasting business and efficient use of broadcasting business, thereby guaranteeing the freedom of broadcasting business and ensuring the freedom of operation of the broadcasting business with strict requirements along with the purpose of promoting the public welfare, and thus, guaranteeing the freedom of operation of the broadcasting business by preventing unreasonable interference between unauthorized broadcasting business operators or CATV broadcasting business operators due to unfair competition, and thus, the Plaintiffs are deemed as one of the independent interests protected by the Broadcasting Act (Article 127(1).2).

(B) In full view of the overall purport of the arguments as to this case, CF boxes used by the Defendant does not simply adjust the cross-breadth ratio of the broadcast program screen as alleged by the Defendant, but rather make a composite image signal by inserting the data of the instant commercial caption into the input broadcast signal when the Plaintiffs’ broadcast signals are input into CF boxes, and make it adjusted by inserting them as television broadcast sets. The broadcast program, the cross-breadth ratio of which is adjusted as above, is broadcast on the upper part of the screen, and the broadcast program, the lower part of the screen lower part of the screen, and the Defendant’s commercial caption continuously appeared. Accordingly, the broadcast signal transmitted by the Plaintiffs is reasonable to view that it is processed and altered through the Defendant’s CFS. Accordingly, it is reasonable to view that the Plaintiffs’ broadcast signal is processed and altered through the Defendant’s CFS, and the Plaintiffs’ right to seek for the exclusion and alteration of the broadcast program was infringed upon by the Plaintiffs’ right to seek for the prohibition of the Plaintiffs’ broadcast program alteration as seen above.

(C) In addition, as seen above, the Defendant’s business of processing and altering broadcasting signals and emitting the instant commercial caption is using the broadcasting rights of the Plaintiffs as CATV broadcasting business operators, facilities such as three saws, credit, and operating power, etc. The advertisement methods also constitute the Defendant’s commercial caption, and thus, the Defendant’s above advertising acts are not only undermining the quality of broadcasting services provided by the Plaintiffs, but also undermining the quality of broadcasting services provided by the Plaintiffs, and undermining the Plaintiffs’ advertising activities using the broadcasting screen such as commercial caption for which the Plaintiffs are limited in accordance with the regulations under the Broadcasting Act, but also undermining the Plaintiffs’ business activities using the broadcasting screen such as commercial caption for which the Plaintiffs are permitted. As seen earlier, the facilities installed by the Plaintiffs through considerable effort and investment in the CATV broadcasting industry are used without permission for one’s own business against business ethics or fair competition order, and thus constitutes a tort infringing upon the Plaintiffs’ business interests

However, as revealed by the above facts, it is difficult for the plaintiffs to expect the effectiveness of the plaintiffs' right to remedy for damages in light of the following facts: not only the defendant's advertising act is one-time, but also the defendant's advertising act is continuously exposed to the defendant's advertising act by many unspecified persons who view the television that the plaintiffs installed and used the defendant's CFS; considering the nature of the above advertising act, it seems very difficult for the plaintiffs to grasp daily cFS installation of individual cable broadcasting subscribers and the defendant's advertisement status, etc., the plaintiffs' order ordering monetary compensation to the defendant is not sufficient to expect the effectiveness of the plaintiffs' right to remedy for damages. The plaintiffs' interests protected by prohibiting the defendant's above advertising act are more recognized than losses to the defendant's freedom of business. Thus, the plaintiffs may claim against the defendant that connect the defendant with the advertising video transmission device that does not permit the plaintiffs to connect, process and alter the broadcasting signals transmitted by the plaintiffs using the above advertising video transmission device, and that the plaintiffs' acts of allowing a third party to do the above acts.

(3) Indirect compulsory performance

In principle, compulsory execution against a non-performance obligation, which is an incidental obligation, can only be indirectly enforced, and the decision of indirect compulsory execution is based on a certain amount of compensation for the non-performance of obligation through a necessary examination of the debtor upon a separate request of the creditor after the execution title has been established in the judgment procedure. Thus, in the judgment procedure for the establishment of enforcement title, indirect compulsory execution should be limited to the case where the debtor is likely to violate this within a short period of time even if the enforcement title is established in view of the case at the time of the closing of argument in the litigation procedure concerning the non-performance of obligation, even if the execution title is established in view of the case at the time of the closing of argument in the litigation procedure concerning the non-performance obligation (see Supreme Court Decision 93Da40614, 4062

If the defendant continues to engage in advertising business even at the time of the closing of argument in this case, and all other circumstances revealed in the arguments in this case, it is probable that the defendant violated this prohibition even if the enforcement title ordering the defendant to prohibit such act, and it is also possible for the defendant to calculate the reasonable amount of compensation to the defendant in accordance with Article 261 of the Civil Execution Act concerning indirect compulsory performance. Thus, if the defendant violated the above duty of omission, it is reasonable to order the plaintiffs to pay compensation calculated at the rate of five million won per day from the date of the violation.

3. Conclusion

If so, the plaintiffs' claims of this case are accepted within the above scope of recognition, and the remaining claims are dismissed as without merit. Since the judgment of the court of first instance is unfair with some different conclusions, it shall be accepted in part of the plaintiffs' appeal and shall be changed to the contents including the part of indirect compulsory performance recognized above, and the defendant's appeal shall be dismissed as it is without merit. It is so decided as per Disposition.

[Attachment List omitted]

Judges Cho Jae-young (Presiding Judge)