206Na4207 Confirmation of musical works, etc.

1. 00

2. Kim 00

[Defendant-Appellant]

1. Clerks 00;

2. Kim 00

[Defendant-Appellant]

Seoul Central District Court Decision 2005Gahap33928 Delivered on December 7, 2005

August 30, 2006

October 11, 2006

1. The plaintiffs' appeal is dismissed.

2. Based on the addition of the purport of the claim in the trial, using the sound recorded in each of the records listed in Appendix 1, it is confirmed that the neighboring rights of the performer as a performer of the above sound are 3/14 and 2/14 shares for the plaintiff 1, separately from each of the records listed in Appendix 1 and Rab records listed in Appendix 2, and in the case of producing a new sound record, it is confirmed that the neighboring rights of the performer as a performer of the above sound are 2/14 shares for the plaintiff 1.

B. Defendant 1 shall not reproduce, sell, transmit, or lend each music record listed in [Attachment 3] without the consent of the Plaintiffs, in the form of a chyp tape, camera, video tape, MP (P), MD (MP), DV (DVD), and other storages, and (1) shall not reproduce, sell, transmit, or lend the music record recorded in each music record listed in [Attachment 1] and (2) shall not produce, reproduce, sell, distribute, transmit, or lend the new music record separately from each music record listed in Attached 1 and dyb records listed in Attached 2(2).

3. The plaintiffs' remaining additional claims are all dismissed.

4. Of the costs of appeal, the costs of appeal are assessed against the plaintiffs, and the costs of appeal are assessed against the two-minutes, which are assessed against the plaintiffs, and the remainder is assessed against the defendants.

1. Claim(the plaintiffs added the claim(s) of the claim(s) to the following. C. The plaintiff added the claim(s) to the claim(s).

(a) copyright and neighboring rights, rights to receive copyright fees, recording and recording of each sound record as shown in Appendix 1;

It confirms that all rights, such as the right to supply printed materials and publicity, are against the plaintiffs.

(b) the network to be produced in the future, except for each sound record as set out in Appendix 1 and as well as as as the hybrid to be produced in the future;

The right to receive royalties, recording, and provision of printed materials with respect to all phonograms related to the singing of Kim ore Kim

It is confirmed that 1/2 equity interest in all copyright and neighboring rights, such as publicity rights, exists in the plaintiffs.

of the corporation.

C. Defendant 1 without the consent of the plaintiffs, and without the consent of the plaintiffs, D.C. (MP) and C.C. (MP) and C.

Pursuant to the foregoing paragraph, each sound record described in paragraph (b) is in any form of files, IMD (MD), Dvidi (DV), or any other storage.

No production, reproduction, sale, distribution, transmission, or lease shall be allowed.

(d) seek the judgment set forth in paragraph (1) of this Article;

2. Purport of appeal

The judgment of the first instance shall be revoked. The judgment of the first instance shall be sought.

1. Basic facts

The following facts are not disputed between the parties, or may be recognized by comprehensively considering the whole purport of the pleadings in each entry of Gap evidence of 1 to 3, Gap evidence of 5 to 10, Gap evidence of 16, Eul evidence of 5 to 11 (including each number):

A. The relationship between the parties to the instant case and Kim Jong-tin

Around January 1996, the deceased Kim Jong-dae, focusing on the father (the father), the plaintiff 1, the mother (the mother), the plaintiff 2, the defendant 1, the wife (the wife) and the defendant 2 are married.

B. Prior to the creation of the four existing music records of this case (1) Kim Jong-soo 1, 1992, the 2nd 1st 3rd mix Kim Jong-mix 1, the 3rd mix Kim Jong-mix 1, the 4th mix Kim Jong-mix 1, the 1992 mix 1, the 9th mix Kim Jong-mix 1, the 9th mix Kim Jong-mix 1, the 1993 mix 1, the 9th mix Kim Jong-mix 2, the 1st mix Kim Jong-mix 1, the 1993 mix 1, the 9th mix Kim Jong-mix 2, the 1st mix Kim Jong-mix mix, the 1st mix, the 1st mix, the 1st mix of the new music records, the 1st mix of the mix 1, the mix.

(4) The above contract made by the person as of October 12, 1993 includes the authority and responsibility to record the sound of the existing four music records of this case on the side of Kim Young-mix. In fact, Kim Young-moo made a number of multi-party tapes in which his singing and reflects are recorded, and produced a master tape by editing the most of these recorded sound sources, and Shin Man-hin produced the existing four music records of this case using the sound sources of the Mwit-mix (the multi-party tape is Kim Il-mix and the Mick tape is considered to have been kept in the Mana community).

C. After the death of Kim Jong-seok died on January 4, 1996, Kim 00 filed an application for the prohibition of payment of royalties against Shin Jong-seok to the effect that "The defendants, the heir of Kim Jong-tin, filed a claim for the injunction against payment of royalties against Kim Jong-tae to the effect that "No payment of royalties to the existing four music records of this case shall be made to Kim Jong-tae," and that he received all rights to his musical work from Kim Jong-seok before Kim Jong-seok's creation on the basis of the terms of the contract between Kim Jong-tae and Shin-Ma-dong as mentioned in the above paragraph (b) and that he was transferred all rights to his musical work from Kim Jong-seok before Kim Jong-seok's creation, and that he excluded the defendants, the heir of Kim Jong-seok, the heir of Kim Jong-seok, filed a claim for the injunction against payment of royalties against Kim Ma-tae, and that he filed a claim for the injunction against Kim 00 and Shin Don-tae as the Seoul Central District Court 23097.

D. Formation of the instant agreement

The above royalty payment prohibition provisional disposition and the lawsuit seeking the confirmation of royalties claim were expressed in the media, and the full bench also recommended reconciliation on the grounds that they are the lawsuits between families. Defendant 1 and the deceased Kim 00 agreed on the same content as the attached Table 2 on June 26, 1996 (hereinafter referred to as the "agreement in this case"). According to the above agreement, the Defendants voluntarily withdrawn the above royalty payment prohibition application and the lawsuit claiming the confirmation of royalties claim, and Kim 00 received the royalty payment from the New Linna Museum on October 8, 2004.

E. Testamentary gift and death of Kim 00

However, on July 3, 1996, the deceased Kim 00 between the above net Kim 00 and the tracking code company.

10. Under a contract concluded as of October 12, 200, the deceased Kim 00 bequeathed all the rights to the existing four music records of this case (hereinafter referred to as "the testamentary gift of this case"), and died on October 8, 2004.

F. Defendant 1’s independent music record production process (1) and Defendant 1’s independent music tape (including the previous four music records or other music records of this case or the pre-public and non-public music records) produced by Kim Young-moron were kept without the consent of Kim 00.

19. Defendant 1’s existing 4-MM on the 4-day music records of this case, including the 11-MM recorded on the 4-day music records of this case, and Defendant 1’s existing 4-MM on the 10-day music records of this case’s 10-MM recorded on the 4-day music records of this case’s 10-MM on the 4-day music records of this case’s 10-MM on the 4-day music records of this case’s 10-MM on the 5-day music records of this case’s 10-MM on the 4-day music records of this case’s previous 4-day music records of this case’s 20-MM on the 4-day music records of this case’s 1-MM on the 4-day music records of this case’s previous 2-MM on the 4-day music records of this case’s 20-day music records.

2. Claim for confirmation of rights to the existing four music records of this case

A. The plaintiffs' assertion

On June 26, 1996, the deceased Kim 00 agreed to transfer the rights and all other rights to the existing four music records of this case held by the deceased to the defendant 2 upon the death of the deceased (Article 1109 of the Civil Act) upon the agreement of this case on June 26, 1996 (Article 2 of the Attached Table 2). On July 3, 1996, the deceased, contrary to the terms of the above contract of private donation, donated all rights to the previous four music records of this case to the plaintiffs (after death). The legacy of this case was made on July 3, 1996 to the above deceased after the death of this case. If the contents of the two or more will are objectively in conflict with the will of this case before and after the death of the testator, the provisions of Article 1109 of the Civil Act are applicable mutatis mutandis to the private donation contract, so the contract of this case shall be deemed to have been withdrawn by the deceased Kim 00's testamentary gift in conflict with the contract of this case.

B. The Plaintiff’s assertion that the content of the instant agreement constitutes a private donation agreement (hereinafter referred to as the “instant transfer agreement”) under which the Plaintiff agreed to transfer to Defendant 2 all the rights and other rights to the previous four music records of this case upon the death of the deceased Kim 00 (hereinafter referred to as “the instant agreement”), and that the agreement was null and void by the legacy in conflict with the agreement.

A private donation contract refers to a contract which takes effect upon the death of a donor by promising the donor to give property free of charge before the death of the donor. In full view of the circumstances leading to the agreement between the Defendants and the deceased Kim 00 and the content of the transfer agreement of this case as seen in the above basic facts, the purpose of the transfer agreement of this case is not to contest each other as to whether the legitimate right holder with respect to the previous four phonograms and all other rights is, while the deceased Kim 00 prior to the birth of this case, the above rights are reverted to the above deceased, and instead, it is reasonable to view that the post-the above deceased will vest in the above rights, and that the above deceased will vest in the defendant 2, and that the rights are reverted to the deceased by promising to give the property free of charge before the death of the donor, and therefore, it cannot be interpreted as a private donation contract which takes effect upon the death of the deceased. Thus, the assertion that the agreement of this case was cancelled by the presumption that the contract of this case is a private donation contract without any reason.

In addition, since a private donation contract is a "contract which requires the agreement with a donee", it is distinguished from a testamentary gift, which is a sole act, so all provisions concerning testamentary gift cannot be applied mutatis mutandis notwithstanding Article 562 of the Civil Code. In the case of a private donation contract, the benefit of a donee who acquires conditional rights to death of a donor under a contract with a donor cannot be undermined by a unilateral will of a donor. Thus, the above unilateral withdrawal provision stipulated on the basis of the nature of a will cannot be applied mutatis mutandis. Thus, the above plaintiffs' assertion is without merit.

(2) In addition, there is no evidence to acknowledge that the transfer agreement of this case was concluded by Defendant 1’s strong pressure, and there is no evidence to acknowledge that the transfer agreement of this case was concluded by Defendant 1’s strong pressure. Accordingly, the Plaintiffs’ revocation assertion on this ground is without merit. (3) Accordingly, the Plaintiffs’ assertion on the premise that the transfer agreement of this case was lawfully withdrawn or cancelled, and thus, is invalid.

3. Requesting confirmation of rights to phonograms to be produced in the future;

A. The parties' assertion (1) upon the agreement in this case, the plaintiffs agreed that the net Kim 00 and defendant 1 shall jointly hold the right to the sound records to be produced in the future as shown in Section 3 of Attached Table 2, as shown in Section 3 of this case. After the death of Kim 00, the rights to the sound records to be produced in the future held by Kim 1/2 were inherited to the plaintiffs, and the defendants shall not inherit the above rights of Kim 00. Thus, the defendants' assertion that the rights to the sound records to be produced in the future in connection with the music of Kim Ma-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k.

B. Determination

(1) As seen above, in the agreement of this case, Kim 00 and defendant 1 entered into an agreement with the above four existing music records excluding Kim Jong-soo's four existing music records of this case, and entered into an agreement between Kim 00 and defendant 1, but without agreement between Kim 1 and defendant 1, and if one party entered into an agreement alone, it shall be deemed as a breach of contract (Article 3 of the Attachment 2), and if the meaning of the above agreement is examined and the purport of oral argument is added to Eul 17, it is recognized that the above agreement of this case was made with the above 10 new music records excluding the above four existing music records of this case, and that the attorney Kim Jong-young, who prepared the above 10 new music records of this case and the above 10 new music records excluding the above 4 music records of this case, was present in the criminal case of defendant 1 as well as the above 2's new music records of this case's new music records 17th of March 206, 2006.

(2) However, according to the death of Kim 00, the plaintiff's property inherited 3/7 and 2/7 of the plaintiff Lee Jong-dong's 2/7, and the defendants inherited 2/7 on behalf of the defendants. Thus, the plaintiff's neighboring rights as the performer of the above 3/14 ( = 3/7 x 1/2) when producing new music records, are different from the 4 existing music records of this case and the 3/14 (the above 3/3/7 x 1/2) and the defendant's 2/14 ( = 2/7x 1/2) and the defendant's 3/14 (the defendant's 1/2) rights to seek the production of the music records of this case are not accepted in the case where the plaintiff Kim 00's rights are not inherited to the defendants, and the defendant's 3/1984) rights to seek the production of the music records of this case are not accepted prior to the commencement of inheritance.

4. As seen earlier than the claim for prohibition of the production, etc. of the instant four music records, using the sound recorded in the instant four existing music records, separate from the instant four music records and the instant music records, and, in the case of the production of the new music records, the neighboring rights as a performer of the said music records belong to the Plaintiffs and the Defendants, Defendant 1, without permission of the Plaintiffs, made and sold Defendant 3 music records using the sound sources of the music recorded in the instant four music records, thereby infringing on the Plaintiffs’ neighboring rights as the performer, and may infringe on the Plaintiffs’ rights. Accordingly, the Plaintiffs may seek prohibition or prevention against Defendant 1.

Therefore, Defendant 1 is obligated not to engage in the acts of reproduction, sale, distribution, transmission, and lending of three phonograms (only some of the three phonograms recorded by Defendant 1 infringed on the Plaintiffs’ neighboring rights. However, it is practically impossible to physically separate only some of the above phonograms into the above phonograms. Thus, Defendant 1 is obliged not to engage in the acts of reproduction, etc. of the entire phonograms, and not to engage in the acts of reproduction, sale, distribution, transmission, and lending of the previous four phonograms, separate from the previous four phonograms of this case and the hybrid phonograms of this case without the Plaintiffs’ consent.

5. Conclusion

Therefore, the plaintiffs' claim in the first instance court is dismissed due to the lack of reason, and the judgment of the first instance that dismissed the above claim is justified, and thus, the plaintiffs' appeal disputing this claim is dismissed. The additional claim in the first instance court is justified within the above scope of recognition, and it is accepted within the above scope of recognition, and the rest of the claim is dismissed as it is without merit. It is so decided as per Disposition.

Judge Park Dong-dong

Judges Choi Jae-at

Judges old-time

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A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.