[1] The purport of demanding the specification of facts charged under Article 254(4) of the Criminal Procedure Act

[2] Purport of Article 124(1)3 of the Copyright Act / Whether a person who infringes on a program copyright by reproducing a computer program on a hard disc, etc. constitutes “a person who acquires reproduction (such as a computer hard disc, etc.) of a program made by an act of infringement” under Article 124(1)3 of the Copyright Act (negative), and whether a crime of violating Article 136(1) of the Copyright Act is established (affirmative) and whether a crime of violating Article 136(2)4 of the Copyright Act is also established (negative)

[3] If there are parts not specified in the facts charged, measures to be taken by the court

[1] The facts charged should be stated clearly by specifying the date, time, place, and method of a crime (Article 254(4) of the Criminal Procedure Act). The purport of the law demanding the specification of facts charged is to facilitate the exercise of the defendant’s right to defense.

[2] Article 136(1) of the Copyright Act provides for a person who infringes an author’s property right, etc. by means of reproduction, etc., while Article 124(1)3 of the Copyright Act provides for a separate provision which punishs a person who acquires a reproduction of a program made by infringing a program’s copyright with the knowledge of such fact as an act of infringing the program’s copyright, and is punished under Article 136(2)4 of the Copyright Act.

Article 124 (1) 3 of the Copyright Act does not include the act of using a program itself in the form of infringement on the program copyright itself, but it is a provision prepared to ensure the effectiveness of the protection of the program copyright by deeming the reproduction of a program created and distributed by the act of infringement to be an infringement upon the knowledge of such circumstances and use for business.

In light of the legislative intent and language of Article 124(1)3 of the Copyright Act, a person who infringes on a program copyright by reproducing a computer program on a hard disc, etc. cannot be deemed as a person who has acquired reproduction (computer hard disc, etc.) of a program made by an act of infringement under the said provision. Therefore, only a crime of violating Article 136(1) of the Copyright Act is established, and the offense of violating Article 136(2)4 of the same Act is not established.

[3] If the facts charged are not specified, the court shall request the prosecutor to specify the facts charged, and if the prosecutor does not specify it, it shall be bound to dismiss the prosecution for that part.

[1] Article 254 (4) of the Criminal Procedure Act / [2] Articles 124 (1) 3, 136 (1) and (2) 4 of the Copyright Act / [3] Articles 254 (4) and 327 subparagraph 2 of the Criminal Procedure Act, Article 141 of the Regulation on Criminal Procedure

[1] Supreme Court Decision 2016Do6757 Decided January 25, 2018 / [2] Supreme Court Decision 2015Do1877 Decided August 18, 2017 (Gong2017Ha, 1820) / [3] Supreme Court Decision 2015Do3682 Decided December 15, 2016 (Gong2017Sang, 191)

Defendant 1 and one other

Defendants

Law Firm Seoin, Attorney Park Jae-hoon

Seoul Eastern District Court Decision 2018No1505 decided June 27, 2019

The guilty part of the judgment of the court below (including the acquittal part of the first instance court on the program work of the guilty part) is reversed, and this part of the case is remanded to the Panel Division of the Seoul Eastern District Court.

The grounds of appeal are examined.

1. As to the unspecified assertion of facts charged in the grounds of appeal

A. The summary of the ancillary facts charged against the Defendants (excluding the part not guilty; hereinafter the same shall apply) is as follows.

Defendant 1 Co., Ltd. is a corporation with the purpose of advertising agency business, advertising production, and sales business located in Seoul ( Address omitted), and Defendant 2 Co., Ltd. is a corporation with the purpose of advertising agency business, advertising production, and sales business located in Seoul ( Address omitted).

(1) Defendant 1 corporation

On November 10, 2016, the Defendant: (a) at the office of the Defendant 1 Co., Ltd., Ltd., the Defendant acquired 7 copyrighted program works (name 1 omitted); (b) “(name 2 omitted); (c)” 6 and “(name 3 omitted)” 17 of the copyright in the “foreign Co., Ltd.; (d)” 1 of “(name 5 omitted)” holding copyright in the “Nonindicted Co., Ltd. 3”; and (e) 6 of “(name 6 omitted)” and “(name 7 omitted)” holding copyright in the “Nonindicted Co., Ltd. 4”; and (e) obtained 1 of “(name 7 omitted)” without permission, and infringed the Defendant’s copyright in relation to the Defendant’s business by using it.

(2) Defendant 2 corporation

On November 10, 2016, at the office of the above defendant 2 Co., Ltd., the defendant's employees, 8 "(the program name 1 omitted)," "(the program name 2 omitted)," "(the program name 8 omitted)," "(the program name 8 omitted)," "(the program name 9 omitted)," "(the program name 3 omitted)," "(the program name 4 omitted)," "(the program name 4 omitted)," "(the program name 4 omitted)," "(the program name 5 omitted)," "the program name 5 omitted)," and "the program name 16 "(the program name 6 omitted)" and "the program name 25 "(the program name 7 omitted)" which hold copyright, and infringed the copyright owner's work by reproducing it without permission.

B. The prosecutor stated in the indictment the applicable provisions of the above charges in Articles 141, 136(2)4, and 124(1)3 of the Copyright Act, and indicted the indictment.

C. Based on its stated reasoning, the lower court rejected the Defendants’ assertion to the effect that the facts charged were unspecified, on the grounds that there was no obstacle to the Defendants’ exercise of their right to defense and that the facts charged are sufficiently specified to the extent that it is distinguishable from other facts.

D. However, the lower court’s determination is difficult to accept for the following reasons.

(1) The facts charged should be stated clearly by specifying the date, time, place, and method of a crime (Article 254(4) of the Criminal Procedure Act). The purport of the law demanding the specification of facts charged lies in to facilitate the exercise of the defendant’s right to defense.

(2) Article 136(1) of the Copyright Act provides for a person who infringes an author’s property right, etc. by means of reproduction, etc., while Article 124(1)3 of the Copyright Act provides for a separate provision that a person who acquires a reproduction of a program made by infringing a program’s copyright, knowing such fact, uses it for business purposes, and is punished under Article 136(2)4 of the Copyright Act.

Article 124(1)3 of the Copyright Act does not include the act of using a program itself in the form of infringement on the program copyright itself, but it is a provision prepared to ensure the effectiveness of the protection of the program copyright by deeming the reproduction of a program created and distributed by the act of infringement as an infringement upon knowing such circumstances and using it for business purposes (see Supreme Court Decision 2015Do1877, Aug. 18, 2017).

In light of the legislative intent and language of Article 124(1)3 of the Copyright Act, a person who infringes on a program copyright by reproducing a computer program on a hard disc, etc. cannot be deemed as a person who has acquired reproduction (computer hard disc, etc.) of a program made by an act of infringement under the said provision. Therefore, only a crime of violating Article 136(1) of the Copyright Act is established, and the offense of violating Article 136(2)4 of the same Act is not established.

(3) If the facts charged are not specified, the court shall request the prosecutor to specify the facts charged by making an official questioning, and if the prosecutor does not specify it, the prosecutor shall be dismissed (see Supreme Court Decision 2015Do3682, Dec. 15, 2016).

(4) Examining the instant case in accordance with the aforementioned legal principles, the Defendants cannot exercise their right of defense at all regarding whether employees acquired a computer program as “the reproduction of a program made by an act of infringement” or “the reproduction of a program made by an act of infringement”, and the method of acquiring it is unclear, and the method of acquiring it is not clear, thereby hindering the Defendants’ exercise of their right of defense. The Defendants cannot exercise their right of defense as to whether employees were the reproduction of the computer program in question on the hard disc, etc., or whether they were the reproduction of the program made by an act of infringement, by recognizing that they were the reproduction of the program made by an act of infringement.

(5) Therefore, the facts charged against the Defendants cannot be said to have been specified specifically in the facts charged.

E. Therefore, the lower court should order the prosecutor to specify the facts charged with respect to the reproduction acquired by the employees, who are the actors, and employees, and should have dismissed the prosecution unless this is specified. The lower court did not take such measures and rendered a judgment on the substantial conviction. In so doing, the lower court erred by misapprehending the legal doctrine on the specification of the facts charged, thereby adversely affecting the conclusion of the judgment.

2. Scope of reversal

For the above reasons, the part of the judgment of the court below's conviction among the ancillary facts charged against the Defendants should be reversed, and as long as the part of each of the ancillary facts charged is reversed, among the primary facts charged against the Defendants with the same body, the part of the acquittal of the reasons for the program copyrighted work in each of the ancillary facts charged as well

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the guilty part of the judgment below against the Defendants (including the acquittal part of the first instance court on the program work of the guilty part) is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min You-sook (Presiding Justice)