Requirements for the establishment of joint principal offenders

Article 30 of the Criminal Act

Supreme Court en banc Decision 98Do321 Decided May 21, 1998 (Gong1998Ha, 1829) Supreme Court Decision 2007Do235 Decided April 26, 2007, Supreme Court Decision 201Do2021 Decided May 13, 201

Defendant 1 and four others

Defendants

Suwon District Court Decision 2010No1941 Decided December 23, 2010

The part of the lower judgment against Defendant 4 is reversed, and that part of the case is remanded to the Panel Division of the District Court. Defendant 1, 2, 3, and 5 are all dismissed.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

(a) Whether the creativity is recognized in the ○ Village Program;

According to the evidence adopted by the court of first instance as cited by the court below, in the case of damages, etc. between the victim non-indicted 1 corporation (hereinafter "victim company") and the Defendants, etc. in Seoul Central District Court 2006Gahap92887, the Computer Program Protection Committee, an appraiser, made a quantitative comparison of the computer program of non-indicted 2 corporation (hereinafter "non-indicted 2 corporation") and the files constituting the source code of the victim's △△△△△△△ program with the victim company's ○○ Village program at the commission of the above court, it can be seen that only 6.50% of the victim company's ○ Village was identical and similar based on 9.89% based on the △△△△△△ program and ○○ Village program. Thus, even if the victim company partially used the △△△△△△△△ program

Meanwhile, in light of the records, the distribution management program currently used by Nonindicted Co. 3 △△△△△ Group (hereinafter “Nonindicted Co. 3”) cannot be deemed as the same program as the secondary program that was opened based on Nonindicted Co. 2’s △△△△△△△△△△△ program. Therefore, upon the commission of the above court, the result of the Korea Database Promotion Center’s appraisal on Nonindicted Co. 3’s program and the aforesaid ○○ Village program is inconsistent with the appropriateness of the method of appraisal, even though the similarity conducted on the △△△△△△△△△ program itself and the ○○ Village program, as seen above, does not interfere with the determination of the creativity of the ○○ Village program based on the result of appraisal.

Therefore, on the premise that the creativity of ○○ Village Program is recognized, the lower court’s determination on whether to infringe the program copyright is justifiable and acceptable. In so doing, it did not err by misapprehending the legal principles on the determination of originality of the program, as alleged in the grounds of appeal.

(b) Whether the program actually supplied is identical to the program with a revised clause;

According to the evidence adopted by the court of first instance as cited by the court below, the distribution management program produced and supplied by non-indicted 4 corporation (hereinafter "non-indicted 4 corporation") which the defendants worked as representative or employee under a subcontract with the non-indicted 5 corporation for the development of the SI (SI) from the non-indicted 5 corporation is identical with or partly modified with the restored LI (SI) program, and thus is substantially identical. The court below's judgment to the same purport is just, and contrary to the allegation in the grounds of appeal, there is no violation of the principle of free evaluation of evidence against logical and empirical rules.

2. Regarding ground of appeal No. 2

According to the reasoning of the judgment below, in the case of damages, etc. by the Seoul Central District Court 2006Gahap92887, based on the evidence adopted by the court of first instance, the court below acknowledged the following facts: (a) as a result of comparison of the similarity between the computer program restored by the Computer Program Protection Committee and the victim’s ○○ Village Program based on the quantitative method, 9.78% based on the ○○ Village Program, and 88.24% based on the restored ○ Village Program; and (b) judged that the restored ○ Village Program is substantially similar to the restored ○ Village. In light of the records, the court below’s fact-finding and judgment

Meanwhile, as seen earlier, the victim company’s ○ Village Program is a separate program without actual similarity with the △△△△△ program of the non-indicted 2. Thus, in determining whether the ○ Village Program constitutes the secondary program with which the substantial similarity is maintained with the △△△△ program, the argument in the grounds of appeal that it is necessary to prepare only with only a type of creative expression that is newly added to the △△△△△ program among the ○ Village Program, on the premise that the ○ Village Program constitutes the secondary program with which the △△△△△ program is maintained.

3. As to the third ground for appeal

According to the evidence adopted by the court of first instance as cited by the court below, it can be seen that the ASP program for the sole store restored in the Nowon-west returned by the defendant 4 was prepared in accordance with the ASP program for the distribution purpose of the victim company and was actually supplied to the customer. Thus, regardless of whether the restored ASP program for the distribution purpose of the victim company was actually supplied to the customer, it constitutes an infringement of the victim company's right to open the ASP program for the distribution purpose. Meanwhile, while the victim company's ASP program for the distribution purpose consists of jp and java file, the restored ASP program for the sole store is composed only of jp file, even if both programs are not sold in the form of jp file and leased through the Internet, it does not affect the judgment of the court below.

This part of the judgment below is somewhat inappropriate in its reasoning, but it is just in its conclusion that recognized the infringement of the right to open a program for distribution purposes, and it is not erroneous in the misapprehension of legal principles as to the infringement of program copyright, which affected the conclusion of the judgment.

4. As to the fourth ground for appeal

A. The co-principal under Article 30 of the Criminal Act is established by satisfying the subjective and objective requirements, namely, the commission of a crime through functional control based on the intent of co-processing and the intent of co-processing. The so-called crime liability as a co-principal, depending on the case where a person who has not directly shared part of the elements of a crime, may be held liable for the so-called crime as a co-principal. However, in full view of the status and role of the co-principal in the whole crime, control over the progress of the crime, and the influence of the crime, etc., it should not be deemed that there is a mere conspiracy, but a functional control through essential contribution to the crime (see, e.g., Supreme Court en banc Decision 98Do321, May 21, 1998).

B. Examining the evidence adopted by the court of first instance as cited by the court below in light of the record, Defendant 2 is recognized as having been involved in the victim company's infringement of the right to open ○○ Village Program and ASP Program for distribution purpose, and Defendant 4 was involved in the infringement of the right to open ESP program for distribution purpose. Thus, the court below's finding the above Defendants guilty of this part of the facts charged is justified. Contrary to the allegations in the grounds of appeal, the court below did not err by exceeding the bounds of the principle of free evaluation

C. However, among the judgment below, it is difficult to accept the part that recognized Defendant 4 as a joint principal offender's liability for the above ○○ Village Program Copyright infringement for the following reasons.

Even according to the judgment of the court below, it is difficult to view that Defendant 4 directly participated in the act of infringement of the right to open ○ Village Program as above by the remaining Defendants. However, solely on the ground that the above Defendant took part in the process of maintenance and repair of the program in Nonindicted Company 4, it cannot be readily concluded that he participated in the conspiracy about the infringement of the right to open ○ Village Program, or that he did not control or neglect the process of opening ○ Village Program through the remaining Defendants, and it is difficult to find any other evidence to acknowledge it.

Therefore, it is difficult to view that Defendant 4 has functional control over the act of opening the above ○ Village Program through essential contribution to the crime, and therefore, it is difficult to recognize the criminal liability for co-principal in this part.

On the contrary, the lower court, which recognized all of the charges against the above Defendant, has erred by misapprehending the legal doctrine regarding the requirements for the establishment of a joint principal offender under Article 30 of the Criminal Act, or by recognizing facts without evidence contrary to logical and empirical rules, thereby exceeding the bounds of the principle of free evaluation of evidence and thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal

5. Conclusion

Therefore, among the judgment below, the part of the violation of the Computer Program Protection Act regarding Defendant 4’s ○○ Village Program is reversed as above. Since one sentence is imposed on the remaining crimes of the above defendant and concurrent crimes under the former part of Article 37 of the Criminal Act, among the judgment below, the part against Defendant 4 of the judgment below is reversed in its entirety, and this part of the case is remanded to the court below for a new trial and determination, and all appeals by Defendant 1, 2, 3, and 5 are dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ahn Dai-hee (Presiding Justice)