[2] In a case where Gap local government announced a public announcement of the implementation of the food culture model BI and the production and installation business of products, and stated in the proposal guidelines that "the proposing company must make proposals in pure creative works which do not conflict with the Copyright Act", and Eul corporation participated in the bidding and entered into a contract for the production and installation of BI and products, but Eul's design part of BI's design was almost used for commercial purposes, the case holding that BI cannot be seen as " pure creative works which are not in conflict with the Copyright Act" under the proposal guidelines

1. As to the ground of appeal regarding BI

A. Interpretation of a juristic act is clearly confirming the objective meaning that the parties gave to the act of representation. In a case where there is a conflict of opinion on the interpretation of a juristic act between the parties, which raises an issue of interpretation of the parties’ intent, it shall be reasonably interpreted in accordance with logical and empirical rules by comprehensively taking into account the contents of the juristic act, the motive and background leading up to such juristic act, the purpose to be achieved by the juristic act, the genuine intent of the parties, etc. (see, e.g., Supreme Court Decisions 94Da1142, Apr. 29, 1994; 2013Da56891, Jan. 29,

B. According to the reasoning of the judgment below, based on the following circumstances acknowledged by the adopted evidence, the court below determined that the BI (hereinafter “instant BI”) of the attached Table 1 video as indicated in the judgment below constituted “a pure creative work that does not conflict with the Copyright Act” as stated in the public announcement of tender and the proposal guidelines attached thereto (hereinafter “instant proposal guidelines”) of the project for installing a model distance for food culture in the Pungdong and BI (hereinafter “instant project”).

1) Among the instant BI, it is difficult to deny the originality of the text portion, and it is difficult to conclude that the design value or creativity falls short of the design portion compared to the design portion. It is difficult to view the instant BI as a simple modification or modification of the attached Form 2 film work (hereinafter “the instant foreign copyrighted work”) as indicated in the lower judgment. Thus, the instant BI constitutes a copyrighted work under the Copyright Act.

2) The instant proposal manual uses the concept of “compact and reproduction” as a concept corresponding to pure creative works. In light of the entire context of the above sentence and the meaning of creative works under the Copyright Act, if the Defendant’s work to be proposed is “a creative work not contrary to the Copyright Act”, it can be deemed that the requirements for pure creative works under the above provision have been satisfied, and the instant BI can be deemed to fall under such requirements.

3) A creative work that is to be adopted as a symbol of Pungdong, must be excluded as a matter of course from a derivative work that is authorized by the original copyright holder, or only the work that the bidder voluntarily created all individual elements constituting BI cannot be deemed to have satisfied its requirements.

C. However, we cannot accept the above determination by the court below for the following reasons.

(1) The reasoning of the lower judgment and the evidence duly admitted by the lower court reveal the following.

1) On October 6, 2009, the Plaintiff announced a public announcement of the instant project implementation with respect to the production and installation of BI and products that see their characteristics and theme in order to specialize and develop the Nando area located in the Pungdong-dong Pungdong-dong Pungdong-gu, Yongsan-gu as a model distance for food culture. The attached “instant proposal guidelines” states that “The proposing company shall make a proposal as a pure creative work that does not conflict with the Copyright Act, and shall submit it for the violation to be elected, but shall be held liable not only for the cancellation of the election, but also for all civil and criminal liability if it is found in a false and forged manner.”

2) The Defendant participated in the above bidding and submitted a proposal on the design time of each video creation (hereinafter “the creation of this case”) in attached Forms 3 through 8 as indicated in the judgment below with the instant BI, and was selected as a priority bidder. On December 14, 2009, the Defendant concluded the instant BI production contract and the instant product production contract with the purport that the Plaintiff would make the franchise Spanish as a joint beneficiary and would make and install BI and the products.

3) The Defendant and Franchises completed the manufacture and installation of the instant BI and the products, and received KRW 247,297,940 from the Plaintiff by June 30, 2010. Of them, the design cost related to BI was paid to the Defendant in total.

4) The instant BI consists of the parts of “ tree” design, “savor joint and several liability,” and “savor joint and several liability,” and the Defendant directly produced the said text portion, but the design portion was rarely used for commercial purposes.

(2) Examining these circumstances in light of the legal principles as seen earlier, in the following respect, the instant BI merely used the foreign copyrighted work of this case as it was and composed of its text parts, and thus, it cannot be deemed as a pure creative work that does not conflict with the Copyright Act.

1) Since the instant proposal manual clearly states not only the “copyright not contrary to the Copyright Act” but also the “net work”, it cannot be deemed that the said requirement is satisfied solely on the ground that it is a creative work not contrary to the Copyright Act.

2) Even in cases where the meaning of “satisfy” is deemed to be “unsatisfying and unsatisfying”, insofar as the Defendant brought the foreign work of this case as it is, it can be sufficiently interpreted as “confisfying and unsating

3) Taking into account the BI’s purpose or its utility value to express the identity of brand through the height of brand, etc. and to create unique and unique images of brand, the percentage of the design portion is larger.

4) To the extent that it does not simply conflict with the Copyright Act, even if a third party uses the design portion of the instant BI at will, the Plaintiff cannot prevent it from using the right to the instant BI, and thus, cannot satisfy the purpose of the instant BI production contract.

D. Nevertheless, the court below determined that the instant BI constituted “ pure creative works not contrary to the Copyright Act” under the proposal guidelines of this case, and rejected the Plaintiff’s assertion that the instant BI was concluded by deception. In so doing, the court below erred by misapprehending the legal principles on the method of interpreting intent, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

2. As to the ground of appeal on the creation of the instant product

The court below determined that the creation of this case was not cancelled or cancelled, and that the creation of this case was not constituted a tort in relation to this part, in light of the fact that the design of this case was selected as the design stated in the defendant's proposal before the proposal of this case was selected as the last BI, and that there was no direct connection with the BI, among them, the creation of attached Form 3 as indicated in the judgment of the court below represents trees in comparison with the instant BI, but it is recognized as completely separate from the instant BI in terms of its expression form and method, etc., and all of the creation of this case constituted pure creative works as defined in the proposal of this case.

In light of the records, the above judgment of the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the cancellation or cancellation of contract and the establishment

3. Conclusion

Therefore, the part of the judgment of the court of first instance regarding BI of the case is reversed, and that part of the case is remanded to the court below for a new trial and determination, and the remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok (Presiding Justice)