T.B.P Co., Ltd. (Law Firm Western, Attorneys Song Ho-ho et al., Counsel for the plaintiff-appellant)

ELB Co., Ltd. (Bae, Kim & Lee LLC, Attorneys Park Sang-soo et al., Counsel for the defendant-appellant)

September 18, 2014

Seoul Southern District Court Decision 201Gahap18452 Decided August 30, 2013

1. The judgment of the first instance court, including the Plaintiff’s claim changed at the trial court, shall be modified as follows:

A. The Defendant shall pay to the Plaintiff 689,320,620 won with 5% interest per annum from October 18, 201 to October 14, 201, and 20% interest per annum from the next day to the day of full payment.

B. The plaintiff's remaining claims are dismissed.

2. 3/5 of the total litigation costs is assessed against the Plaintiff, and the remainder is assessed against the Defendant, respectively.

3. The above paragraph 1(a) may be provisionally executed.

1. Purport of claim

The defendant shall pay to the plaintiff 2,485,392,00 won and 2,329,494,590 won with interest rate of 20% per annum from October 18, 201 to the date of full payment (the plaintiff changed the part of damages claimed in the trial as above).

2. Purport of appeal

A. The plaintiff

Of the judgment of the first instance, the part against the plaintiff corresponding to the amount ordered to be additionally paid shall be revoked. The defendant shall pay to the plaintiff 1,209,392,00 won with 5% interest per annum from May 2, 2013 to August 30, 2013, and 20% interest per annum from the next day to the day of full payment.

B. Defendant

The part against the defendant in the judgment of the first instance is revoked, and the plaintiff's claim corresponding to the above revocation is dismissed.

1. Facts of recognition;

The reasoning for this Court’s explanation is as stated in the part on “1. Facts recognized” among the grounds of the judgment of the court of first instance (However, all of the part on “an independent party intervenor” or “an intervenor” are cited in accordance with the main sentence of Article 420 of the Civil Procedure Act and Article 420 of the same Act.

2. Determination

(a) Duty of return of unjust enrichment

1) Return of unjust enrichment

According to the above facts, the defendant, without any legal ground, obtained profits by using each of the above video works that the plaintiff acquired from the copyright holders of the first and second video works and thereby suffered losses equivalent to the profits of the plaintiff. Thus, the defendant is obligated to return the profits to the plaintiff.

2) Judgment on the defendant's assertion

A) The Defendant asserted to the effect that the instant distribution contract and the instant agreement merely merely merely mean that the Plaintiff acquired the author’s property right pursuant to the agreement, and that the Plaintiff cannot claim for return of unjust enrichment due to the use of the video works Nos. 1 and 2 without permission, since the Plaintiff was granted the right to exclusively use the video works Nos. 1 and 2.

However, in full view of the following circumstances revealed by the aforementioned facts and the purport of the entire pleadings, it is reasonable to interpret that the Plaintiff, upon entering into an agreement with the distribution agreement of this case, acquired by transfer the “right of distribution”, which is a right including the right of public performance, reproduction and distribution, the period and use of which are limited from the Korea Trade-Investment Promotion Agency, which is the copyright holders of the video works No. 1 and 2, and the high Sung-gun group. Therefore, if a third party uses the video works without permission, which are the subject of the contract, without permission, causes damages to a third party by losing the opportunity for the Plaintiff to exercise the right of distribution, and thus, the claim for return of unjust enrichment due to the use of the video works shall also be deemed to belong to

Pursuant to the distribution contract of this case, the Plaintiff has the right to distribute the video works No. 1 for the purpose of multi-level image and large-level video exhibition (Article 2(1)), and the Plaintiff may enjoy profits by directly screening the video works or by granting a license to a third party (Article 3(2)). In addition, according to Article 4 of the distribution contract of this case, the Plaintiff has the right to independently determine the rent for the video works No. 1 (Article 1 and (2) and, in particular, have the right to independently determine the rent for the video works No. 1 (Article 3) for marketing (Article 5). Only in cases where the Plaintiff and the Korea Trade-Investment Promotion Agency enter into a rental contract that may reflect the interests of the Plaintiff and the Korea Trade-Investment Promotion Agency (Article 2(5)). In fact, the Defendant entered into a contract with the Plaintiff on January 29, 2009 for the lease of the video works No. 1 (Article 3(2)) and used the video works No. 1.

According to the agreement of this case, Gosung-gun granted the Plaintiff the exclusive right to distribute domestically and overseas video works except for the right to distribute video works to the exhibition hall in Sungsung-gun (Article 12). The Plaintiff is entitled to collect the Plaintiff’s preferential right from the revenue through the distribution of the above video works (Article 13(1)). The Gosung-gun did not assert any right as to the second video works even though it received a notice of lawsuit from the Defendant regarding this case.

○ The Defendant continued negotiations to enter into a contract with the Plaintiff for the purpose of using the first and second video works, such as exchanging the draft of the contract with the Plaintiff several times. However, the negotiations for the conclusion of the said contract had not been reached on May 10, 2010 for the method of calculating user fees. As a result, the Defendant’s use of the first and second video works without entering into the contract on user fees should be deemed to have obtained the Plaintiff the benefit equivalent to the reasonable user fees that would have to have been paid if the said contract was entered into, and to have sustained the Plaintiff’s loss equivalent to the same amount.

B) In other words, the Defendant asserts to the effect that the Plaintiff impliedly consented to the use of video works Nos. 1 and 2 free of charge.

The plaintiff provided each of the above video works to the defendant in the course of negotiations for concluding a contract for the use of video works Nos. 1 and 2 as seen earlier. However, it is not sufficient to acknowledge that the plaintiff impliedly consented to the defendant's use of each of the above video works regardless of whether the plaintiff entered into a contract for the use of video works No. 1 and 2, and there is no other evidence to prove otherwise. Thus, the defendant's assertion is without merit.

B. Scope of return of unjust enrichment

1) The parties' assertion

A) The plaintiff's assertion

As follows, the Defendant’s profit derived from using the video works Nos. 1 and 2 is KRW 2,329,494,590, and the Defendant is a malicious beneficiary, and the Defendant is obligated to pay interest on the above interest. Thus, the Defendant is obligated to pay interest on the interest accrued from Jun. 1, 2010 to Oct. 17, 201, the following day after the end of the use thereof (i.e., KRW 160,830,859 (i.e., KRW 2,329,494,590 x 504/365 x 50 x 5%) total of KRW 2,490,325,392,00 among the total of KRW 2,485,392,00, and the principal interest of KRW 2,329,494,590 from Oct. 18, 2011.

○ First, on the basis of the existing transaction cases, the user fee per day 】 number of days of use 】 number of days of use 】 number of media (applicable with area weight) 】 number of media (one) 】 (one of the same formula. According to the case where the type of use in this case is the most similar (Evidence No. 57), the user fee per day is one million won, and the discount rate shall be applied according to the number of days of use; (1) where the user fee is continuously increased, (2) where the user fee is not increased after nine months, (3) where the user fee is not increased after six months, (4) where the user fee is calculated by dividing into cases where the user fee is not increased after three months, (4) where the user fee is calculated by dividing into cases where the user fee is not increased after three months. (2) Where the user fee is calculated by dividing into cases where the user fee is to be increased after three months, (3) where the user fee is to be calculated by 2,94,032,258 won; (2,37,000,30 won.

According to the method of calculation based on the initial agreement between the Plaintiff and the Defendant, the user fee of 1,200 won can be calculated by using the formula of “Defendant’s 3D TV sales 】 the sales price of 3D TV sales 】 (10,00 won). The Defendant’s 3D TV market share, the total sales price of 3D TV sales 1,209 around August 31, 2009 during which the Defendant used the 3D TV sales 1,209 to May 31, 2010, when the Defendant estimated the Defendant’s 3D TV sales 2,816,000 won, the user fee is at least 2,816,000 won, while the remaining effective period from the advertisement is about 5 months, considering this, the period of use is deemed to be until October 31, 201, the average amount of 3D TV sales 14,849,000 won and each of the above amounts shall be increased to 1,064,00.84.08.

According to the method of application of the terms and conditions of the 2D film lease company, the user fee of the 1,200 won can be calculated by using the same formula as “the number of video works by use 】 the number of video works x 1,200,000”. The rent under the terms and conditions of the 2D image company frequently quoted in Korea and abroad in connection with the lease of the 2D image is KRW 4,000,000, 840,000, 350,000, 350,000, 350,000,000 for the EXPO, industry, and industry, and industry, and the Defendant used the 1,2D video works for each of the above purposes. Meanwhile, the 1,200,000 won per x 405,000,000 won per x 505,005,000 won, respectively.

According to the calculation method based on the result of the appraisal at the court of first instance, the appraiser at the court of first instance calculated the clean number of 336 video works. However, as seen earlier, the clean number of video works at the court of first and second instances shall be 405. Thus, the user fee calculated based on the result of the appraisal at the court of first instance shall be KRW 1,755,00,000 (No. 1,755,000).

(1) If the average of the user fees calculated as above exceeds 2,329,494,590 won, the average of the user fees calculated as above.

B) Defendant’s assertion

○ The Defendant entered into a license agreement with multiple entrepreneurs on the use of 3D videos and paid a reasonable price. Therefore, the amount of unjust enrichment by the Defendant should be calculated based on the actual transaction details of the 1, 2, or similar video works.

○ The Defendant used video works Nos. 1 and 2 for the purpose of providing them more than once, and calculated an appropriate user fee according to the cases corresponding thereto. ① In the case of a video work, the average of KRW 55,167,620 (minimum of KRW 57,310,00) based on the number of parcels (two) from September 2009 to May 201, the average of KRW 60,145,650 (minimum of KRW 63,357,750) based on the total quantity (five minutes), and the final average value is KRW 57,656,635 for the purpose of providing them, ② the average unit price per unit is KRW 4,500 (minimum of KRW 6,667,67) for the purpose of using them, ② the average of KRW 4,500 for each of them is the maximum of KRW 301,641 for the Defendant’s 604,604 for the 1064.

Therefore, the average user fee of the video works Nos. 1 and 2 is KRW 58,070,635 (= KRW 57,656,635 + KRW 414,00). The maximum amount is KRW 63,971,114 (= KRW 63,357,750 + KRW 613,364).

2) Determination

The fact that the Defendant’s amount of unjust enrichment to be returned to the Plaintiff ought to be deemed as the amount equivalent to the usage fee of video works Nos. 1 and 2.

A) Whether the results of the first instance trial were adopted or not

First of all, the Nonparty of the first instance trial appraiser is calculated as KRW 2,485,392,00 by using the following methods:

The length of ○○○ 1,200,000 won (=336,00 won + 784,00,000 won + 60 seconds ± 5 seconds, divided by individual pages): The unit price of 1,000,000 won for the main production of ○○ 1,336,000,000 won (=1,000,000 x 336%) additional production costs (70%): 1,20,000 won (=336,00,000 + 784,000,000 won + 3336,000,000 won + 300,000 won for the total production of x 700,309,309,3000,3000 won for additional production charges under x 700)

However, for the following reasons, it is difficult to comply with the above appraisal results as it is.

○ The appraiser calculated the user fee of the video works Nos. 1 and 2 on the basis of the price of the Stockholm P (the number of images taken for the production of other contents prior to the creation of database, and the re-produced and lent them). The above price standard is set in proportion to the price of the relevant video works depending on how the unit price for each of the specific types of images is set, so a reasonable standard should be presented to determine the user fee of the video works No. 1 and 2 in order to use them as a basis to determine the user fee of the video works No. 1 and 2.

However, in the case of video works Nos. 1 and 2, however, considering the fact that the short pages consist of 1 to 2 seconds, the said appraiser deemed that 336 units were composed of 5 seconds by converting 1 to 336 units by 5 seconds. However, the video works Nos. 1 and 2 are not simply a simple combination of the pages recognized as independent, such as Switzerland food, but cannot be deemed as a kind of video works that can be easily used or made about Stockholms, since they are an animation that contains a single completed story. Therefore, in order to meet the price system of Stockholms, it is difficult to view that the determination of the said appraiser is reasonable in determining the unit price by uniformly dividing the same quantity into the same quantity.

○ In addition, the said appraiser determined an average clean unit price of KRW 1,00,000 as raw materials, referring to the price of the Stockholm food business entity, and added an amount equivalent to the remaining 70% additional production cost by deeming it as 30% of the total cost as a raw material. This cannot be deemed as appropriate for the Defendant to calculate the usage fee for the production of images, which are copyrighted works.

○ The above appraiser added an amount equivalent to 30% of the royalty to the Defendant’s act of reproducing and distributing video works in the form of Blura disc or USB by taking account of the fact that the price of “a simple hearing,” which is the concept of ownership in the music record market, is higher than that of “a simple hearing,” which is the concept of lease. There is no reasonable ground to apply the pricing system of the digital music market at all different from that of the above.

○ There is no sufficient evidence to acknowledge that there is a practice to pay additional charges to the above appraiser in relation to the calculation of the user fee for video works, as the additional charges for the delay in payment calculated by the appraiser also is applied to the welfare of 2% per month.

○ Ultimately, the appraisal result of the said appraiser is calculated based on the unit price based on the aspects of the film production, and it seems inappropriate to calculate the specific user fee, including the defendant’s agency, use at the entrance of the showor and the film theater, provision of diskss, etc.

B) Determination of the method of calculating user fees

With respect to 3D video works, such as video works, particularly those of 1 and 2, there seems to be no practice established or fixed in the domestic market. Accordingly, in principle, the user fee of such video works shall be determined by a contract between the parties to the transaction, and in fact, the Plaintiff and the Defendant, while negotiating for concluding a contract, have a difference in view of the user fee.

In the event that a copyright holder can enter into a contract for using copyrighted works with a person who intends to exploit copyrighted works, and there is a case in which the copyright holder entered into a contract for using copyrighted works in a similar form as the act of using copyrighted works without permission and received usage fees, barring special circumstances such as that the usage fees have been set exceptionally due to exceptional circumstances, the usage fees stipulated in the contract may be deemed as profits which the copyright holder would have ordinarily gained by exercising his/her right and may be deemed as the basis for determining the amount of unjust enrichment (see, e.g., Supreme Court Decision 9Da69631, Nov. 30, 2001). In particular, in the case of this case where negotiations on copyrighted works 1 and 2 between the original and the defendant about the amount of compensation for damages caused by infringement of copyright, it would be more reasonable to determine the contents of the similar contract.

Therefore, in cases of similar contracts concluded with the plaintiff, the defendant, and the third party, based on these cases, the following should be compared with the cases where the defendant uses the video works Nos. 1 and 2 as a whole: the type of use, purpose of use, type of video works, length, and scarcity; and this is the most reasonable to calculate the appropriate usage fee for the video works Nos. 1 and 2 in addition to all the circumstances, such as the progress in which negotiations have been concluded between the plaintiff and the defendant regarding the user fee for the video works Nos. 1 and 2, and the details of profits that the defendant would have been able to obtain due to the use of the video works No. 1 and 2. The above circumstances should be considered as the calculation of the proper usage fee for the video works No. 1 and 2 by each of the defendant's use acts

C) Conduct on the part of the defendant agency

Comprehensively taking account of the purport of the entire arguments in Eul evidence 28 and 29, the defendant entered into a contract with the defendant's global store in May 31, 2010 and 3D TV display within the exhibition in 2010 with the defendant's global store in 2010 and the defendant's service period for 3D TV display within the exhibition shall be six times from March 25, 2010 to March 31, 201, and seven times from January 1, 201 to January 31, 201 with the above 20.3D (the total length of 15 minutes between 1 to 23 seconds, which is 258,50,00 won for the purpose of being provided with the above 10th period from January 25, 201 to 31, 201 to 10.3 billion won for the purpose of being provided with the above 10th period from January 31, 2011.

The above case of each contract (hereinafter referred to as the "Defendant contract case") is a contract for the use of 3D TV for the purpose of promotional display in the store for a long period of one year, which sets the period of use as one year, and is close to the defendant's time of use (from September 2009 to May 201), so it is the most similar case that can be considered as the basis for calculating the user fee for the demonstration of 1 and 2 video works at the defendant agency.

According to the case of the defendant's contract, the user fee paid by the defendant to use the 3D video works at the defendant's store for a contract period of about one year around 2010 shall be 16,242,90 won for each minute ( approximately 176,00 won + 176,00,000 won + ((15 + 60 + 60 + 23) + (11 + 60 + 62)} ¡¿ 60, and less than 22; hereinafter the same shall apply). When applying the standard in this case as it is, from September 2009, when the defendant started to have commenced a public performance from around 209 to the defendant's store for a period of about one year (i.e., from August 209 to August 1, 2009 to the defendant's store, however, there is no sufficient evidence to acknowledge the fact that the amount of the user fee suspended from the defendant's store for about 20 months 194 months 】 20.2 months x 94 months x 9 ;

However, the case holding that the defendant's 3D video works supplied by the defendant from the 1st and 20th, on the one hand, are merely a short set of 1 to 3 minutes, rather than a closed story, and it cannot be concluded that the amount calculated by simply adding up each amount to 1 and 2nd film is the same as the reasonable usage fee of the 3D video works, which are subject to the contract of the defendant, and that the 1st and 3D TV works were also included in the conversion of 2D video works into 3D TV works using 3D siren methods, etc. to which the 3D TV was first released from the world, and the defendant's 1 and 200th and it appears that the 3D TV was more likely to have been offered from the plaintiff's initial time of the introduction of 3D TV to the 1st and 20th and the 30th time of the purchase and demand of the plaintiff's 1 and 30th time of the above contract.

(D) an act of demonstration in a show of silveres;

Comprehensively taking account of the overall purport of the arguments in Gap evidence Nos. 56-58, the plaintiff entered into a contract for the software lease to show the first film in Chinese injury for three days from March 11, 2009 to March 13, 2009, the contract period of 2,500,000 (Additional tax separately). The plaintiff was paid 3,000,000 won (Additional tax separately) from ELD Co., Ltd. on May 5, 2009 and received 3,00,000 won (Additional tax separately) from ELD Co., Ltd. for three days from June 2, 2009 to 4 of the same month, and the plaintiff entered into a contract for the lease of software with the United States for three days from March 11, 2009 to 10,000 won (the period of lease between the defendant and the defendant on January 29, 2009 to 10,509).

Since the Defendant’s display of video works 1 and 2 in the U.S. for four days from January 7, 2010 to the 10th day of the same month, and the Defendant’s display of video works 1 and 2 in the EXE Report Center for three days from March 31, 2010 to April 2, 2010 is very similar to each of the above contracts (hereinafter “Plaintiff’s contract case”), since the Defendant used the same video works (video 1) for three to four days for the purpose of the 3D TV exhibition, the Plaintiff’s contract case may be deemed as applicable as it is in this case.

According to the case of the plaintiff's contract, since the cost of transmitting the video work 1 produced by the plaintiff during the short period of time at the exhibition, such as the show show, is about 900,000 won per day (=(2,750,000 won + 3,300,000 won + 3,850,000 won + (3,850,000 won + 3,850,000) + (3 days + 3 days + 3 days + 5 days)), the defendant's calculation of user fee for the above use is 12,60,000 won (= 90,000,000 x 7 days x 2).

(e) demonstration at the entrance of the film museum;

The time period between March 200 and May 2010 for video works Nos. 1 and 2 using 3DTVs at the Defendant’s publicity room (CGV) located at the entrance of 34 domestic film centers is as seen earlier.

This type of use is similar to the act performed at an agency of the Defendant for the purpose of promoting the counter-sale for a relatively long period of time, and the case of the Defendant’s contract as seen in the above sub-paragraph (c) above is identical to the time of demonstration at the entrance of the film center at around 2010, and thus, the above Defendant’s contract case can be applied to this part as is. Therefore, it is reasonable to base usage fees of KRW 16,242,90 per minute as determined in the case of the Defendant’s contract. Therefore, it is reasonable to base usage fees of KRW 75,80,620 (=16,242,90 x 28 x 90 x 16,28 x 12 months).

(f) providing Blulate disks to consumers;

The Defendant’s provision of 92 copies of the 3D TV produced by the Defendant to the consumers who purchased the 3D TV is as seen earlier. Meanwhile, in full view of the entire purport of the pleadings in the statement No. 35, it can be acknowledged that the Defendant entered into a program production agreement with the Korea Digital Satellite Broadcasting Company on December 27, 2010, under which the Defendant would place 30,000 won for production of 3D video works (total length 2 hours), 30,000 won, including 3D video works, for the purpose of display and display of the Defendant’s 3D TV disc and for the payment of 200,000 won as the price.

위 인정사실에 의하면 2010년 말경 2시간 분량의 3D 영상물이 담긴 블루레이 디스크의 공급비용이 약 6,667원(≒ 200,000,000원 ÷ 30,000장)인 사실을 알 수 있는바, 여기에 피고가 블루레이 디스크를 스스로의 비용으로 제작하여 배포한 경위, 제1, 2 영상물의 내용, 분량과 그 희소성, 배포 시점과 수량 등의 제반 사정을 보태어 보면, 피고가 제1, 2 영상물이 담긴 블루레이 디스크를 제작하여 소비자들에 제공한 행위에 따른 사용료는 디스크 1개당 1만 원으로 보아 920,000원(= 10,000원 × 92개)으로 산정하기로 한다.

G) circulating video files Nos. 1 and 2 to the Defendant’s agency in USB

In full view of the overall purport of the arguments adopted earlier, the Plaintiff and the Defendant did not finally conclude a contract on the usage fees in the course of negotiations for concluding a contract for the use of video works Nos. 1 and 2. However, the Plaintiff did not have any dispute regarding the scope of the right of use as “the use for promoting and displaying multi-level TV public relations within the Defendant’s agency and store.” In the course of the negotiations, the Plaintiff offered the Defendant a video work Nos. 1 and 2 at the Defendant’s request. In order to use the video works Nos. 1 and 2 within the scope of the right of use as set forth above, it should be deemed as necessary as a matter of course to reproduce the video works No. 1 and 2 on the storage media, such as the USB, and provide them to the Defendant’s agency or store. Therefore, it is difficult to view that the Defendant’s act of reproducing the video works No. 1 and 2 provided by the Plaintiff to the USB and distributing them to the Defendant’s agency, etc., as an ordinary incidental act in calculating the usage fees.

H) Review of the parties’ arguments

(1) Of the case of the Plaintiff’s contract, the Plaintiff asserted to the effect that: (a) daily user fee of KRW 1,00,000 is determined by the agreement on the use of video works (see evidence 57) concluded with the Defendant; and (b) the amount at which the discount rate for each period is applied shall be deemed the user fee of the video works No. 1,2; (c) however, even though the use period in the contract on the use of video works is one of the important factors for determining the user fee, it cannot be readily concluded that the long-term user fee should be determined based only on the daily user fee; and (d) the Defendant’s use of the video works No. 1, 2 is aimed at facilitating the purchase of 3D TV from all stores of the Defendant at the early stage of the 3D TV release; and (e) it is difficult to adopt the aforementioned method by which the Plaintiff asserts that it is inappropriate to determine the user fee for each shop in light of the case of the Defendant’s contract, etc.

B. The Defendant asserts that the amount of usage fees corresponding to the above five minutes out of the 28 minutes, which are the total quantity of the video works Nos. 1 and 2, the Defendant himself/herself used, is the profit amount he/she acquired. However, the Defendant appears to have used the video works after being provided by the Plaintiff for 1/28 and 2/10 of the total length from the Plaintiff in a five minutes, and the usage fees should be calculated on the basis of the amount provided by the Plaintiff. While the Defendant calculated usage fees based on the case of the Defendant’s contract, the Defendant calculated usage fees based on the amount provided by the Plaintiff. However, the Defendant applied the Defendant’s contract case without considering the characteristics of the video works No. 1, 2, and the difference in the nature of the video works No. 1, 2, and the time of contract, etc., the method of asserting the Defendant cannot be employed.

(i) reorganization;

Ultimately, the amount of profit gained by the defendant by using video works Nos. 1 and 2 without any legal cause shall be KRW 689,320,620, as shown in the separate sheet for calculation of user fees.

C. Sub-committee

1) The Defendant is obligated to pay to the Plaintiff damages for delay calculated at each rate of KRW 689,320,620 as unjust enrichment due to the use of Cinematographic Works Nos. 1 and 2 without permission and at each rate of 5% per annum under the Civil Act from October 18, 201 to October 14, 2014, which is the date of the ruling of the trial where it is deemed reasonable to dispute over the existence or scope of the Defendant’s obligation to pay to the Plaintiff the following day after the copy of the complaint of this case was delivered to the Defendant, as the Plaintiff seeks by the Plaintiff.

2) Furthermore, the Plaintiff asserts to the effect that the Defendant is a malicious beneficiary, and the interest should be refunded in addition to the usage fee. As to the fact that the person liable for return of unjust enrichment is a malicious beneficiary, the burden of proof is asserted by the party asserting that the person liable for return of unjust enrichment is a malicious beneficiary. Here, the term “faith” refers to recognizing that one’s own interest is not legally attributable, and it is insufficient to recognize the fact that the holding of such interest does not constitute a legal cause, i.e., the requirement for the fulfillment of the obligation to return unjust enrichment (see Supreme Court Decision 2009Da24187, 24194, Jan. 28, 2

In this case, the Defendant had been provided with each of the above video works from the Plaintiff in advance during the negotiation process for concluding a contract for the use of the video works Nos. 1 and 2. However, the Defendant, who did not reach an agreement on the user fee thereafter, suspended the use of the video works Nos. 1 and 2 since June 1, 2010 as seen earlier, and there is no evidence to deem that the Defendant continued to use each of the above video works even after the final display of the above contract, and therefore, it cannot be readily concluded that the Defendant is a malicious beneficiary in light of the legal principles as seen earlier. The Plaintiff’s above assertion on a different premise is without merit.

3. Conclusion

The plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit, and the judgment of the court of first instance which partially changed the conclusion shall be modified as above, including the plaintiff's claim changed in the court of first instance.

[Attachment]

Judges Lee Tae-tae (Presiding Judge)