1. As to the assertion on the primary facts charged of this case

The gist of the facts charged in the instant case is as follows: (a) Defendant 1 operated the “○○○○○○○○○○” site, which is a file sharing site; (b) let the victim Nonindicted Co., Ltd. engage in the business of a cinematographic work in which the copyright was possessed by Nonindicted Co., Ltd.; and (c) allowed the unspecified users to easily reproduce and transmit it at any time; and (d) Defendant 2 Co., Ltd. assisted and abetted Defendant 1, the representative director thereof, by aiding and abetting the infringement of copyright regarding Defendant 2’s business.

As to this, the lower court upheld the first instance judgment that the evidence submitted by the prosecutor alone is insufficient to recognize the non-indicted corporation as a victim of author’s property right from a genuine right holder, and there is no other evidence to acknowledge this otherwise, and that this part of the facts charged constitutes a case where there is no evidence to

Examining the reasoning of the lower judgment in light of the record, the said determination by the lower court is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation

Meanwhile, as long as there is no change in indictment in principle, the court has no obligation to determine the guilty of the facts constituting an offense different from the facts charged, and in light of the purpose of the criminal procedure, which is to promptly discover substantial truth by due process, the defendant is obligated to determine the guilty of other facts constituting an offense exceptionally only in cases where the failure to punish the defendant is obviously contrary to justice and equity (see, e.g., Supreme Court Decisions 2009Do10701, Jan. 27, 201; 2014Do12275, Sept. 10, 2015). Therefore, even if the lower court, even if it is possible to determine the guilty by recognizing a different part of the facts charged in the instant case as to the primary facts charged, it does not contravene the justice and equity, and thus, it cannot be said that the lower court erred in its judgment.

2. As to the assertion on the ancillary facts of this case

A. The purport of Article 254(4) of the Criminal Procedure Act, which states that the facts charged should be specified by specifying the date, time, place, and method of a crime, is to limit the scope of the trial to the court and to facilitate the exercise of the defense right by specifying the scope of the defense of the defendant. Therefore, the specific facts charged is sufficient if the facts constituting the elements of a public prosecution are stated to the extent that it can be distinguished from other facts in light of the nature of the crime charged, and even if some of them are unclear, if the facts charged can be specified by other matters indicated together, it does not affect the validity of the public prosecution if it does not interfere with the exercise of the defense right of the defendant (see Supreme Court en banc Decision 2002Do807, Jun. 20, 2002).

Article 136(1) of the former Copyright Act (amended by Act No. 1110, Dec. 2, 2011; hereinafter the same) provides that “an act infringing upon author’s property right by means of reproduction, performance, public transmission, exhibition, distribution, lending, or preparation of derivative copyrighted works” is subject to punishment. However, unlike patent rights, etc., there are many cases where the author’s property right cannot be specified by registration number, etc. because it does not necessarily require registration on the creation of rights; even if the author’s property right is the same, separate crimes are established for each copyrighted work; and even if the author’s property right is the same, the act of infringing author’s property right which was habitually revised by the former Copyright Act by Act No. 8101, Dec. 28, 2006 was revised to an offense subject to victim’s complaint. The specification of the facts charged regarding infringement of author’s property right is clearly written in the form and form of infringement subject to infringement, and it does not constitute a specific offense as to each copyrighted work.

B. The gist of the instant conjunctive charges is as follows: (a) Defendant 1 operated the “○○○○○○○○○○○○” site, which is the file sharing site; (b) let the non-indicted users conduct the cinematographic work in which the victim’s name was in possession, as indicated in the evidence sheet as shown in the lower judgment; (c) let the unspecified users easily use the cinematographic work in reproduction and transmission; and (d) aiding and abetting Defendant 2’s representative director, the Defendant 1 assisted and abetting the infringement of copyright regarding the Defendant 2’s business as above.

Examining whether the facts charged in this case were specified in light of the legal principles as seen earlier, this part of the facts charged does not specify the name of the holder of author’s property right, which is the victim, but the facts charged are specified enough to distinguish the facts constituting the elements of the crime from other facts inasmuch as the act of a user of the website “○○○○○○○○○”, which constitutes a principal offender’s criminal act, includes the offender’s ID, the file name of the work log file, the date of confirmation of copyright infringement, and the search language, and thus, the work subject to infringement and the method of infringement can be identified.

C. Nevertheless, the lower court determined that this part of the facts charged, on the premise that in the case of an infringement of author’s property right, it is necessary to specify who is the victim of the infringement, was not specified in the facts charged because the victim is unclear. In so determining, the lower court erred by misapprehending the legal doctrine on the specification of the facts charged, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal

3. Conclusion

Therefore, the part of the judgment of the court below concerning the conjunctive facts charged should be reversed, and accordingly, the part concerning the primary facts charged in relation to the same body should be reversed. The whole judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)