[1] Where a CATV broadcasting business entity received digital terrestrial broadcasts from a terrestrial broadcasting business entity and re-transmits them real-time, the case prohibiting simultaneous re-transmission by a CATV broadcasting business entity that infringes on the terrestrial broadcasting business entity

[2] Whether a decision of indirect compulsory performance can be made at the main case judgment (negative in principle)

[1] In a case where a CATV broadcasting business operator received the digital terrestrial broadcasting signals sent to the public by a terrestrial broadcasting business operator through a transmission tower, etc., and then re-transmittings television owned by a subscriber directly or through a three-to-stops for digital cable broadcasting, the case holding that a CATV broadcasting business operator prohibited a CATV broadcasting business operator’s digital simultaneous re-transmission, on the grounds that a CATV broadcasting business operator infringes on a terrestrial broadcasting business operator’s right to simultaneous relay through simultaneous re-transmission, and the provisions of the Broadcasting Act allow a CATV broadcasting business operator to simultaneously re-transmission, or that a simultaneous re-transmission does not infringe on a terrestrial broadcasting business operator’s neighboring rights, and it cannot be deemed that there was an implied agreement that a terrestrial broadcasting business operator should give up its rights beyond the reservation of rights such as neighboring rights, or that such exercise of rights constitutes an abuse of rights, and that it is impossible for a CATV broadcasting business operator to separate the broadcasting signals from a new subscriber.

[2] In cases where indirect compulsory enforcement is permissible, the realization of rights by indirect compulsory enforcement is based on the following stages: ① the establishment of executive titles such as a final and conclusive judgment or a judgment with provisional execution (Article 24 of the Civil Execution Act); ② grant of enforcement clause (Article 30(1) of the Civil Execution Act); ③ application for indirect compulsory enforcement based on the authentic copy of enforcement titles (Article 261(1) of the Civil Execution Act); ④ Examination and decision on whether indirect compulsory enforcement (Articles 261(1) and 262 of the Civil Execution Act), and ⑤ Granting of enforcement clause on the decision of indirect compulsory enforcement (Article 56(1) of the Civil Execution Act and Article 29(1) of the same Act). From the point of view of view of the fact-finding’s conclusion that there is no need for indirect compulsory enforcement to determine whether indirect compulsory enforcement is permissible at the time of final and conclusive judgment, the issue of indirect compulsory enforcement may still be resolved at least by the time of final and conclusive judgment, apart from the point of time and time limit applicable to the final judgment.

[1] Articles 85 and 123(1) of the Copyright Act, Article 27 of the former Composite Cable Broadcasting Act (wholly amended by Act No. 5926 of Feb. 8, 199), Article 78 of the Broadcasting Act / [2] Articles 15(6), 24, 29(1), 30(1), 56 subparag. 1, 261, and 262 of the Civil Execution Act

Korea Broadcasting System and two others (Law Firm LLC, Attorneys Lee Jong-Un et al., Counsel for the plaintiff-appellant)

C&C Co., Ltd. and four others (Law Firm Squa, Attorneys Cho Young-chul et al., Counsel for the plaintiff-appellant)

Seoul Central District Court Decision 2009Kahap132731 Decided September 8, 2010

June 8, 2011

1. The appeal by the plaintiffs and the defendants is dismissed.

2. Of the appeal costs, 20% is borne by the Plaintiffs, and 80% is borne by the Defendants, respectively.

3. The Disposition 2 of the first instance judgment was modified as follows according to the reduction of claims in the trial.

After the lapse of 30 days from the date the judgment of this case was delivered to the Defendants, the Defendants shall not simultaneously re-transmit each digital terrestrial broadcasting signal listed in the list (attached Form 2) sent by the Plaintiffs to the addressees who subscribed to the goods of the Defendants’ composite cable broadcasting.

In the event that the Defendants violated the orders, it shall pay KRW 100 million per day of each violation day to the Plaintiffs concerned (the Plaintiffs reduced the initial date of the prohibition when it comes to the trial).

(Attachment 1-1) Any part of the digital terrestrial broadcasting recorded in the list is merely a part of the digital terrestrial broadcasting indicated in the list (attached Form 2) as to the subject of a separate prohibition claim (attached Form 1-1) for the plaintiff to be subject to a separate prohibition claim (attached Form 2).

1. The plaintiffs

A. The judgment of the court of first instance is modified as follows.

B. The Defendants shall not simultaneously re-transmit each digital terrestrial broadcasting signal listed in the list (attached Form 2) to the recipients who subscribe to the Defendant’s composite cable broadcasting product from the day following the delivery of the complaint of this case.

C. In the event that the Defendants violated the above order, each of the plaintiffs is paid KRW 100 million per day of the violation day.

2. The defendants

The part against the Defendants in the judgment of the first instance is revoked, and the corresponding plaintiffs' claims are dismissed.

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged by taking into account the whole purport of the pleadings in each entry in Gap evidence Nos. 1, 3, 14, 18, 19, 37, 38, 39, and Eul evidence Nos. 17 and 18 (including each number):

A. The Plaintiff Korea Broadcasting System is a public corporation established under the Broadcasting Act, and the rest of the Plaintiffs are broadcasting business operators who run the terrestrial broadcasting business, respectively, as corporations established with a broadcasting station license under the Broadcasting Act. The Defendants are those who run the multi-channel cable broadcasting business with broadcasting facilities and transmission networks installed in Seoul, Yangcheon-gu, Seocho-gu, Seocho-gu, and Gangseo-gu, with a license for CATV broadcasting business under the Broadcasting Act.

B. The Defendants received the broadcasting signals of each digital terrestrial broadcasting (hereinafter “instant broadcast”) recorded in the list (attached Form 2) sent to the public through a transmission tower, etc. by subscribers through CATV broadcasting business, and then directly or through three saws for digital cable broadcasting (facilities that appropriately converted the contents by receiving signals coming from outside, and display them in a television) and re-transmission on the television owned by subscribers (hereinafter “instant re-transmission”), and other channels exclusive for cable broadcasting, such as home shopping, are offered to subscribers.

C. Meanwhile, the Plaintiffs have the right to simultaneous relay broadcasting of each of the instant broadcasts (Article 85 of the Copyright Act).

2. Infringement of neighboring rights;

The right to simultaneous relay is a neighboring right that has received broadcasting signals through the antenna installed in another area, and then re-transmission to the relevant area or to seek the prohibition of unauthorized re-transmission to a third party.

In light of the behavior of simultaneous re-transmission of this case, it can be known that the plaintiffs received the signal of the broadcast of this case through the antenna installed separately from the antenna installed by the plaintiffs and then re-transmission it to the receiver located in the business zone of the defendants. Thus, the defendants infringed the plaintiffs' right to simultaneous relay broadcasting of the broadcasting of this case through simultaneous re-transmission of this case.

Therefore, barring any other circumstances, the Plaintiffs have the right to claim the prohibition of infringement pursuant to Article 123 of the Copyright Act against the Defendants. Therefore, the Defendants are obliged not to simultaneously re-transmit the instant broadcast signals to the addressees who subscribed to the Defendants’ goods for composite cable broadcasting after the lapse of 30 days from the date the instant judgment was served on the Defendants upon their request, as requested by the Plaintiffs.

3. Judgment on the defendants' assertion

A. Summary of the assertion

(1) Article 78 of the Broadcasting Act permits the Defendants to simultaneously re-transmit the instant case.

(2) The simultaneous re-transmission of this case is merely “receiving assistance” and does not infringe neighboring rights.

(3) The Defendants were permitted to simultaneously re-transmission of the instant case with an implied agreement with the Plaintiffs.

(4) The plaintiffs' claim for prohibition against simultaneous re-transmission of this case was abused.

(5) It is impossible to limit only new subscribers, such as the plaintiffs' request.

B. Whether the Broadcasting Act is permitted

(1) The summary of the Defendants’ assertion is as follows.

The former Act on the Management of Reception of Cable Broadcasting (repealed by Act No. 3914, Dec. 31, 1986) and the former Act on the Management of Cable Broadcasting (repealed by Article 2 of the Addenda to the Broadcasting Act, Act No. 6139, Jan. 12, 200) provide that a terrestrial broadcast may be re-transmitting at the time of determining the scope of broadcasting of CATV relay broadcasting business operators, but did not have any provision on the restriction of concurrent relay broadcasting rights. After that, as the CATV Broadcasting Act was enacted on December 31, 191, there was a provision on the obligation of re-transmission and the provision on the exclusion of application of copyright. However, the amended Act did not stipulate such provision.

Article 27 (1) of the former Composite Cable Broadcasting Act (wholly amended by Act No. 5926 of Feb. 8, 1998), which is included in the main text, shall simultaneously re-transmit broadcasts (excluding radio broadcasts) of radio broadcasting stations as prescribed by the Presidential Decree: Provided, That this shall not apply to the case where the broadcasting area of the relevant cable broadcasting station is not included in the broadcasting area of the radio broadcasting station which intends to simultaneously re-transmit.

After that, with the amendment of the Broadcasting Act (amended by Act No. 6139 of Jan. 12, 2000 and enforced after the lapse of two months), when the former Cable Broadcasting Management Act and the former Cable Broadcasting Act are repealed, the following provisions governing CATV broadcasting business operators, such as CATV relay broadcasting business operators and the Defendants, have arisen:

Article 78 (Re-transmission) (1) A CATV broadcasting business operator, satellite broadcasting business operator (excluding a satellite broadcasting business operator who conducts digital multimedia broadcasts) and a CATV relay broadcasting business operator shall receive a terrestrial broadcast (excluding a radio broadcast) conducted by the Korea Broadcasting System and the Korea Educational Broadcasting System under the Korea Educational Broadcasting System Act, and simultaneously re-transmit (hereinafter referred to as the “Simultaneous re-transmission”) as it is without altering the broadcast program: Provided, That this shall not apply to the case where the broadcast area of the relevant CATV broadcasting business operator and the CATV relay broadcasting business operator is not included in the broadcast area of the relevant broadcasting business operator who conducts a terrestrial broadcast.

In light of the legislative progress above, if the legislators tried to regulate the re-transmission of a CATV relay broadcasting business operator by deeming the re-transmission of a CATV relay broadcasting business operator as an infringement of neighboring rights, not only the former Composite Cable Broadcasting Act but also the former Cable Broadcasting Management Act, but also Article 27(1) and (3) of the former Cable Broadcasting Act. Such legislators did not agree with the foregoing. Such legislators concluded that re-transmission by a CATV relay broadcasting business operator does not constitute an infringement of neighboring rights. Inasmuch as terrestrial re-transmission by a CATV relay broadcasting business operator and terrestrial re-transmission by a CATV relay broadcasting business operator who succeeded to its legal status are in substance the same form,

In addition, the provision of Article 78 of the Broadcasting Act excluding the exclusion of the right to transmit simultaneous relay broadcasting and the right to transmit simultaneous relay broadcasting to a CATV relay broadcasting business operator does not stipulate the simultaneous re-transmission which has been recognized as lawful acts since the introduction of the cable broadcasting system as illegal, but rather provides the "liability". Article 78(3) of the Broadcasting Act is merely a provision established to prevent disputes over the infringement of neighboring rights in exceptional cases that may inevitably occur during the process of implementing the compulsory re-transmission.

Therefore, the simultaneous re-transmission of the Defendants does not infringe the Plaintiffs’ neighboring rights.

(2) However, Article 78(1) and (3) of the Broadcasting Act stipulates the obligation of a CATV broadcasting business operator to re-transmit specific terrestrial broadcasts, including educational broadcasts, according to the language and text thereof, and where the specific terrestrial broadcasts (which is the broadcast conducted by the Educational Broadcasting System and the Plaintiff’s broadcast publicly notified by the Korea Communications Commission pursuant to the delegation of Article 78(2) of the Broadcasting Act fall under the same), it can only be interpreted as exempting the liability for simultaneous relay broadcasting infringement under the Copyright Act. In addition, unless the Broadcasting Act does not mention the legitimacy of the simultaneous re-transmission of the remaining terrestrial broadcasts not subject to obligatory re-transmission and exemption from the liability for copyright infringement, it is reasonable to view that the Broadcasting Act does not specifically regulate it, and remains as a matter of resolution in the private sector including the Copyright Act.

Therefore, the legislative process related to cable broadcasting alone, as alleged by the Defendants, cannot be deemed as having declared that the relevant provisions of the Broadcasting Act do not infringe neighboring rights with respect to the simultaneous re-transmission of the instant case, and there is no other evidence to acknowledge it.

C. Whether the “receiving assistance” is “receiving assistance”

(1) The Defendants’ assertion is as follows.

As long as the Plaintiffs were sent without any restriction on the method and scope of reception, no infringement upon the rights of the Plaintiffs is committed by anyone. The Defendants’ receiving and delivering the instant broadcasts on behalf of viewers in response to the demands from viewers does not correspond to the viewers’ receiving and delivery of the instant broadcasts. In other words, in order to view the instant broadcasts, there is a method using the facilities of an individual antenna or collective housing public disclosure office, but the viewers have selected reception through cable broadcasts on behalf of the viewers, including the poor reception area, and constitutes extension of receiving and receiving acts.

Ultimately, the simultaneous re-transmission of this case is merely an act of assisting the reception of broadcasting by a subscriber so that anyone can view free of charge a terrestrial broadcasting without compensation if it is a resident within the broadcasting zone. The simultaneous re-transmission of this case, which is merely an assisting act, does not infringe the neighboring rights of the plaintiffs as it does not infringe the neighboring rights of the plaintiffs.

(2) Therefore, among the public transmission, the term “broadcasting” refers to transmitting sound, image, or sound and image for the purpose of allowing the public to receive at the same time (Article 2 Subparag. 8 of the Copyright Act). Therefore, even if a broadcasting business operator is a broadcasting business operator, he/she cannot assert his/her infringement of rights against receiving acts, not transmission.

Therefore, in order for the Defendants to constitute an act that does not infringe the Plaintiffs’ neighboring rights, the simultaneous re-transmission of the instant case is identical or similar to, or in support of, the act that the addressee is able to receive in the addressee’s territory for the purpose of receiving the same, and the Defendants shall be deemed to have simultaneously re-transmission in the public or in a similar position, such as the addressee.

Therefore, if the simultaneous re-transmission of this case does not constitute the Plaintiffs’ neighboring rights infringement, it shall be deemed that the re-transmission of this case is merely an “aid” under the generally accepted social norms in terms of the method of selecting the channel or the cost paid by the Defendants, etc. in comparison with the case where the re-transmission of this case is received directly or through the means of assisting the Plaintiffs’ broadcast, which is a broadcasting business operator, and the time when the broadcast service is received by the broadcasting business operator, without any dispositive transformation of the contents sent up ② in the intended zone.

(3) Based on these standards, we examine whether the simultaneous re-transmission of the instant case can be evaluated as “receiving assistance.”

① There is no dispute between the parties as to the fact that the Defendants simultaneously re-transmit the broadcasting signals sent to the region within the intended zone.

② There is no special dispute between the parties in regard to the fact that there is no circumstance to deem that the Defendants had changed its identity in individual contents or broadcasting programs from the start to the end of the broadcast to the end of the broadcast, through editing such as deletion, cooking, or selection of part of the broadcast of this case sent by the Plaintiffs, or inserting other contents of the broadcast.

③ The Defendants’ re-transmission of the instant broadcasts does not conflict between the parties that the addressee directly receives the instant broadcasts at least two to three seconds, but there is no dispute between the parties that the broadcast reaches the addressee’s television. This is merely a technical difference, such as wire or wireless, and it does not mean that the broadcast is delivered to the addressee differently from the time desired by the Plaintiffs, and no data exists to deem that the instant broadcast was re-transmittingd during a time other than the time intended by the broadcasting business operator from the addressee’s standpoint.

④ We examine whether the Defendants retransmitting the broadcast signals sent by the Plaintiffs.

First of all, with respect to the broadcasting signals transmitted by the Plaintiffs through 8VSB (SV) method, there is no dispute between the parties concerned as to the fact that the Defendants received them and re-transmissions by converting a part of the broadcast signals by Qudur method. However, the above QAM method is a transmission method prescribed in the technical standards for CATV broadcasting station facilities, etc. as publicly notified by the Korea Communications Commission, and it is not only the technical standards permitted for CATV broadcasting business operators such as the Defendants, but also the aforementioned change in the broadcast signals is not a part that may cause any difference in viewing the broadcast of this case by the addressees through the re-transmission of this case. Thus, the re-transmission of this case cannot be considered as an element beyond the area of the addressee.

However, among the broadcasting signals transmitted by the plaintiffs, the defendants asserted that the facts that the plaintiffs added the channel identification numbers among the broadcasting signals sent by the plaintiffs are excluded and added by the defendants are without dispute between the parties. Accordingly, the defendants asserted that the plaintiffs' channel information processed in the form of "Program and System Information (PSIP)" and the defendants' channel information processed in the form of "Services Information (SI)" are in compliance with the above technical standards. Thus, the above technical standards state that "service information (SI), program and system information (PSIP) are asserted to be Article 26 (3) of the above technical standards (which seems to be erroneous in Article 26 (3) of the above technical standards, but the service information is first provided if the service information (SI), program and system information (PSIP) are provided simultaneously." Since the plaintiffs are not multi-channel broadcasting, and only "program and system information" are transmitted without any possibility of choosing the above technical standards, the defendants cannot be seen to have provided their service information without permission, and thus, they cannot be seen to have provided only the plaintiffs (11:11).

Furthermore, there is no dispute between the parties regarding the re-transmission of the caption broadcasting signal for hearing impaired and the screen screen broadcasting signal for visually impaired among the broadcasting signals transmitted by the plaintiffs. Accordingly, the defendants are inevitable because there is no function to implement the above signals in the three saws, which is not an issue of signal transformation, but an issue of equipment. However, since the defendants provide the receiver who is the subscriber, the function of the three saws in the technical control area of the defendants is not to justify the difference between the plaintiffs' transmission and the re-transmission signals of the defendants, and even from the addressee's point of view, it is reasonable to evaluate that the plaintiffs' broadcast of this case occurred in the re-transmission process of the defendants.

⑤ Finally, in light of other circumstances as to whether the simultaneous re-transmission of the instant case can be included in the area of reception from the addressee’s perspective, the overall purport of the statement and pleading evidence Nos. 1, 3, 23, 34, and 18 and 19 is as follows: (a) the subscribers of the CATV broadcasting join the CATV broadcasting to view the CATV broadcasting in a clean environment compared to the viewing of channels provided by a considerable number of subscribers (the Korea Communications Commission joined the CATV broadcasting to resolve difficulties in viewing the CATV broadcasting at July 2007 at the time of the survey conducted against the subscribers of the instant broadcast; (b) the Defendants are entitled to use fees between 4,00,00 won per month and 33,00,000 won for providing various channels including the instant broadcast; (c) the Defendants provided the subscribers with more opportunities to use the broadcasting facilities than those provided by the Plaintiffs, and (d) the Defendants are not entitled to use the broadcasting facilities independently and independently.

In addition to the above facts, the majority of the addressees selected the defendants as the main agent to assist the reception of the broadcast of this case, rather than having selected the defendants, they view the broadcast of this case through the purchase of goods including many channels, other than the broadcast of this case, without any specific choice. It is difficult to view that the defendants provided the recipients an opportunity to receive terrestrial broadcasts at the same or a similar cost as the case using the facilities of the public notice office. The extent that the amount of the simultaneous re-transmission of this case contributed to the creation of the defendants' profit exceeds the amount of assisting the recipients' receiving of the simultaneous re-transmission of this case. Thus, the defendants' act of assisting the recipients' receiving of this case merely remains in the area of receiving neighboring rights to the extent that it is deemed that the simultaneous re-transmission of this case does not infringe the plaintiffs' neighboring rights.

(4) Therefore, this part of the Defendants’ assertion is without merit.

D. Whether an implied agreement is reached

(1) The Defendants asserted that there was an implied agreement with the Plaintiffs on the permission to exploit the instant broadcast as follows.

In 1961, the CATV relay broadcasting business operator system was introduced under the former Cable Broadcasting Management Act in 1961, taking into account difficulties of terrestrial broadcasting business operators who suffered difficulties in securing enormous financial resources for resolving difficulties and guaranteeing broadcasting quality, and the former CATV relay broadcasting business operator system was introduced under the former Cable Broadcasting Management Act in 191.

According to the implementation of the above system, the Plaintiffs were able to reduce the costs of investment in transmission facilities to resolve difficulties in viewing and secure advertising revenues, and cable broadcasting business operators, such as the Defendants, could expand business opportunities by re-transmitting the instant broadcasts without compensation instead of investing in facilities, and thus, have reached an agreement on re-transmission of “free” broadcasting of the instant broadcasts.

Korean cable Broadcasting Business Operators, including the Defendants, provided re-transmission services of the instant broadcast for a period of 50 years under an agreement with the Plaintiffs, and the Plaintiffs had not raised any objection thereto.

In addition, under the premise that the cable broadcasting service provider has the authority to re-transmission, the Plaintiffs requested the cable broadcasting service provider to change channel numbers or cooperate in the quality of broadcasting so far. The Korea Communications Commission approved the terms and conditions of use of the Defendants, instead of referring to issues regarding the re-transmission of the instant broadcast, and also requested the cable broadcasting service provider to re-transmission of the instant broadcast even during the process of converting the arche broadcasting into

(2) Therefore, it is not necessarily necessary for the right holder to give up his right, but it should be recognized in a case where it can be seen as a waiver of his right through a certain act or a construction of his expression of intent by the right holder. However, for such recognition, it is necessary to strictly determine the application of the act or the expression of intent by the right holder in accordance with the contents of his legal relationship (see Supreme Court Decision 2004Da27150, Apr. 15, 2005, etc.), Gap's evidence Nos. 4, 13, 14, Eul's evidence Nos. 1 through 9, 11 through 15, 21, 25, 32, and 39, and the testimony and the whole purport of pleadings by the non-party 1 of the first instance trial.

① From August 24, 1961, when the former Act on the Management of Reception of Cable Broadcasting (mainly applied to radio broadcasts at the time of proposal, but it was extended to television broadcasts as well as distribution of television in the late 1960s) was enacted and cable broadcasting was introduced for the purpose of resolving difficulties in viewing and ensuring the quality of terrestrial broadcasts, CATV relay broadcasting business operators received and simultaneously re-transmitd terrestrial broadcasts to subscribers.

② As the former Composite Cable Broadcasting Act was enacted on December 31, 1991 for multi-channel broadcasting, a new CATV broadcasting business operator simultaneously re-transmits a terrestrial broadcast with the previous CATV relay broadcasting business operator, and the Defendants have been running a simultaneous re-transmission business since its establishment in 194.

③ In order to discuss overall matters related to conversion of digital broadcasting and reflect them in the policy, early CATV broadcasting business operators had an opposing position on the re-transmission of digital terrestrial broadcasts from 2000 to 2005. However, the government and terrestrial broadcasting business operators requested the re-transmission of terrestrial broadcasts, and accordingly invested in the facilities and equipment of the transmission network.

④ In accordance with the proposal of the 4th Digital Promotion Committee, the Korea Broadcasting Commission’s policy support was deemed necessary in order to develop and expand the integrated hacks and distribution of hacks around February 2006. The Plaintiffs did not raise any objection to the re-transmission of the CATV relay broadcasting business operators or CATV relay broadcasting business operators for a considerable period of time prior to demanding the suspension of re-transmission of the instant broadcast by sending official documents to the Korea Broadcasting Association through which they belong, which is an organization of CATV broadcasting business operators, including the Defendants.

⑤ The Plaintiffs, based on the premise that re-transmission has been conducted by any CATV broadcasting business entity, including seeking to assign a specific channel number to the instant broadcast or investigating the current status of simultaneous re-transmission under the pretext of identifying the disability and quality of receiving terrestrial broadcasts.

6) On April 28, 2010, the Korea terrestrial Digital Broadcasting Promotion Association established with the Plaintiffs, etc. as its members, may recognize the fact that “TV subscribers (TV, satellite, andIPTV) will not be affected by the conversion of terrestrial TV. Therefore, even if the existing products are maintained, there is no problem in viewing TV.”

However, as shown in the above facts, even though the plaintiffs introduced the cable broadcasting for a long time from the introduction of the cable broadcasting to the date of 2008, they actually impliedly agreed with each other's interests with respect to the re-transmission of the defendants, and requested the necessary cooperation from the defendants, this may not be deemed to have existed between the plaintiffs and the defendants, as it can be seen in the first stage of cable broadcasting business policy objectives and the compulsory re-transmission system introduced with respect to public broadcasting after the enactment of the Cable Broadcasting Act, etc., the terrestrial broadcasting re-transmission system has a public aspect of guaranteeing the people's universal viewing rights, and the government has actually reserved various regulations or administrative guidance with respect to simultaneous re-transmission. The plaintiffs are deemed to have actually reserved the exercise of their rights, such as neighboring rights, depending on their own interests, such as expansion of the scope of receiving due to the above government's regulations and the resolution of mis-transmission. It is difficult to view that the implied agreement between the plaintiffs and the defendants was made, and there is no lack of evidence or evidence as mentioned above, 10, 21214 and 3 witness evidence.

(3) Therefore, this part of the Defendants’ assertion is without merit.

E. Abuse of rights

(1) The defendants asserts that the plaintiffs' claim of this case should be rejected for the following reasons.

The Defendants did not exercise at all the rights under the Copyright Act regarding the broadcast of this case for a period of 50 years. Under the premise that cable broadcasting operators are entitled to re-transmission of the broadcast of this case, they requested cooperation in channels and quality of reception, and trusted Defendants invested enormous costs in transmission network and transmission and reception facilities.

Since more people can view high quality broadcasting within the broadcasting zone through the simultaneous re-transmission of the instant case, the Plaintiffs are able to obtain more advertising revenue. Thus, demanding the prohibition of simultaneous re-transmission of the instant case, even though the Plaintiffs did not incur any damage or rather benefit, is against the doctrine of the speech and the exercise of rights that fall under an abuse of rights or invalidated rights, and thus, cannot be allowed.

(2) In order for the claim of abuse of right to be seen as abuse of right, if the exercise of right can be seen as abuse of right, the objective of the exercise of right is only to inflict pains on the other party and to inflict losses on the other party, and there should be no profits on the other party, and objectively, the exercise of right should not be viewed as violation of social order. Unless it falls under such case, even if the loss of the other party is considerably high than the profit that the exercise of right gains by the exercise of right is considerably high, it cannot be viewed as abuse of right (see, e.g., Supreme Court Decision 2002Da22083, 22090, Sept. 4, 2002).

In this case, in light of the fact that the defendants' simultaneous re-transmission of this case by the defendants and the infringement of neighboring rights to the broadcasting of this case continued, the plaintiffs suffered losses for which they would not receive any payment for simultaneous re-transmission with respect to the broadcasting of this case from the defendants. Accordingly, in accordance with the defendants' business strategies (as seen above, posting the defendants' home shopping advertisements among the broadcasting channels of the plaintiffs can be an example) in a limited advertising market, the advertiser's use of the plaintiffs' cable broadcasting as advertising method in lieu of the plaintiffs' broadcasting, and it is not fair that the plaintiffs' use of the plaintiffs' cable broadcasting as advertising method is anticipated to cause losses to the plaintiffs' advertising sales, it cannot be concluded that the plaintiffs' assertion of neighboring rights to the broadcasting of this case has no interest, and the exercise of rights cannot be deemed to violate social order.

(3) Next, as to the assertion of invalidation, if a right holder fails to exercise his/her right over a long-term period, and thus, he/she obtains justifiable grounds to believe that the right holder does not exercise his/her right, or is ratified as not exercising it, and if he/she subsequently exercises his/her right against the principle of good faith, the exercise of his/her right is not allowed in accordance with the so-called principle of invalidation (see Supreme Court Decision 90Meu9619, Aug. 28, 1990, etc.).

In this case, the plaintiffs did not have a problem about re-transmission of cable broadcasting operators for a considerable period of time. However, considering the above, considering the fact that not only their own interests but also their external factors such as government regulation based on the public nature of terrestrial broadcasting re-transmission system, it is difficult to deem that there exists any justifiable reason to believe that the plaintiffs do not exercise their rights at all in the future or that the exercise of their rights is contrary to the principle of good faith.

(4) Therefore, this part of the Defendants’ assertion is without merit.

F. Whether performance is impossible

(1) The Defendants asserted that it is impossible to separate and block broadcasting signals only for new subscribers as claimed by the Plaintiffs on the following grounds.

The Defendants, not only separate the broadcast signals on the channels included in the products chosen by the subscribers, but also transmit all subscribers the same signal which combines the broadcast signals and digital broadcast signals (SD class broadcasting signals of the standardized form of QAM and HD class broadcasting signals of the high quality of the 8VSB) to all subscribers, so it is technically impossible for the new subscribers to restrict the transmission of the instant broadcast, which is a digital broadcasting.

In other words, if the simultaneous re-transmission of HD broadcast signals is suspended, the existing subscribers of the HD product can only see SD terrestrial broadcasting, and the existing subscribers of the HD product can not see h-to-sto-sto-sto-sto-sto-s to-s to-s to-s to-s to-s to-s to-s to-s to-s to-s to-s to-s to-s to-s to-s to-s to-s to-s to-s

In addition, it is unfair that the Defendants make a simultaneous re-transmission of HD terrestrial broadcasting to all subscribers by investing enormous costs at the request of the Plaintiffs. It is also unfair to demand that it is not similar to the actual suspension. Moreover, the suspension of simultaneous re-transmission of this case is subject to the permission of change of facilities of the Korea Communications Commission, and it is also impossible for the Defendants to voluntarily implement without the permission of the

(2) However, according to the Defendants’ assertion, the Defendants’ assertion does not completely suspend the cable broadcasting service for the existing subscribers, but only suspend the HD broadcast service which is one of the two digital broadcasting signals that have been transmitted with the same contents, and the other HD broadcast signals may continue to provide (However, there is a possibility that any complaint may be raised from the existing HD product subscribers, but it is based on the result of the Plaintiffs’ filing a claim for restriction on re-transmission of the digital relay transmission system only for the new subscribers through a partial claim, and the Defendants’ infringement of neighboring rights does not necessarily mean that the existing subscribers are able to view only HD broadcasting through the Defendants only through the existing subscribers, as alleged by the Defendants, and there is no sufficient evidence to support that it is impossible to block the Plaintiffs’ claim, such as the concerns of damage to the existing subscribers, as alleged by the Defendants, and otherwise, the Korea Communications Commission’s permission for change of facilities cannot be rejected at the stage of non-permission and effective.

(3) Therefore, we cannot accept this part of the Defendants’ assertion.

4. Determination as to a claim for indirect compulsory performance

A. The Plaintiffs filed a claim against the Defendants to order the payment of damages in proportion to KRW 100,000 per day of each violation in the event that the Defendants violated the above prohibition obligation.

B. However, it is reasonable that the judgment on the merits does not allow indirect compulsory enforcement for the following reasons (except in cases where it is explicitly permitted by law, such as the latter part of Article 26(3) of the Act on Press Arbitration and Remedies, etc. for Damage Caused by Press Arbitration

(1) In a case where the nature of an obligation is eligible for indirect compulsory performance, the realization of a right by indirect compulsory performance is ordinarily carried out in the following stages: ① the establishment of executive titles such as a final and conclusive judgment or a judgment to be provisionally executed (Article 24 of the Civil Execution Act); ② the granting of an execution clause to a judgment (Article 30(1) of the Civil Execution Act); ③ an application for indirect compulsory performance based on the authentic executory title (Article 261(1) of the Civil Execution Act); ④ the examination and decision of whether an indirect compulsory performance is made (Articles 261(1) and 262 of the Civil Execution Act); ⑤ the granting of an execution clause to a decision of indirect compulsory performance (Articles 56 subparag. 1 and 29(1) of the Civil Execution Act); and ⑥ an immediate appeal against a decision of indirect compulsory performance (Article 261(2) of the Civil Execution Act).

(2) If a decision of indirect compulsory performance is not accompanied at the time of the judgment on the merits of the case, the second stage between the end of the phase and the end of the phase, separate remedies such as damages and removal of the state of violation, and at least there is a time gap in the enforcement by indirect compulsory performance. The gap seems to be able to be resolved if the decision of indirect compulsory performance is accompanied by the decision on the merits of the case.

(3) However, the principal trial procedure and the compulsory execution procedure are subordinate procedures, and the laws governing each of the respective procedures are subordinate procedures and are also subject to a separate single law. From the perspective of necessity to eliminate the above gap period, for instance, it would lead to the conclusion that real estate or seizure order, etc. may also be concurrently carried out in the principal judgment ordering monetary payment. However, the distinction between the two procedures will collapse, and the following problems will arise:

First of all, the criteria and deadline for submission of the data are excessively limited by being advanced at the stage (1). In particular, in the case of an appeal against the judgment on the merits, the interval between the time of closing arguments at the trial court which is the criteria for determining indirect compulsory performance and the time of rendering the decision on indirect compulsory performance is greater.

In addition, in a case where a decision of indirect compulsory enforcement is made together with the judgment on the merits, only the part of the decision of indirect compulsory enforcement is dissatisfied with the same purport as above (Article 261(2) of the Civil Execution Act) and an immediate appeal (Article 261(2) of the Civil Execution Act) is dissatisfied with the method of appeal or final appeal, and thus, it requires a relatively long period of time in its deliberation. In addition, compared to the case of a general legal doctrine, the execution of indirect compulsory enforcement is excessively prolonged and overall as a whole, i.e., the period until reaching the stage is prolonged,

Moreover, there is no effect of suspending the execution on an immediate appeal against the decision of indirect compulsory performance (Article 15(6) of the Civil Execution Act), and there is no effect of delaying the execution, but in a case of appeal due to appeal or final appeal, the delay of execution can not be avoided ultimately.

On the other hand, the problem of time gap up to compulsory execution by a judgment is consistent with the legal system. However, in a case where the court considers that the necessity of preservation is not recognized, there is still a need to make an indirect compulsory execution decision in the main judgment. However, if the judgment of the court is true in a specific case, it will lead to the conclusion that there is no need to take any special procedure different from the general procedure and any special procedure for remedy for infringement of rights against the above "the blank period" on the extension line. Thus, the necessity of the indirect compulsory execution decision should not be recognized together.

C. Therefore, the plaintiffs' claim for indirect compulsory performance is rejected.

5. Conclusion

Therefore, the plaintiffs' claims are accepted within the scope of the above recognition, and the remaining claims are dismissed due to the lack of reasons. Since the judgment of the court of first instance is just in conclusion, all appeals filed by the plaintiffs and the defendants are dismissed (However, the decision of the court of first instance was modified due to the reduction of claims in the trial) and provisional execution is decided not to attach provisional execution (the plaintiffs are not separately applying for provisional execution in this case and the plaintiffs did not exercise their rights to re-transmission of this case for a long period of time, there are reasonable grounds not to attach provisional execution).

[Attachment 1] List: omitted

[Attachment 1-1] List: omitted

[Attachment 2] List: omitted

Judges Lee Ki-taik (Presiding Judge)