[1] Criteria for distinguishing between the inclusive crime and the substantive concurrent crime

[2] The meaning of “reproduced and distributed” under Article 2 subparag. 24 of the Copyright Act, which is a type of “publication” under the Copyright Act / Whether the act of reproducing and distributing a work constitutes a publication of a work only when the act of reproducing and distributing the work constitutes a publication of the work (affirmative), and whether the reproduction of the work constitutes a publication of the work (negative)

[1] Article 37 of the Criminal Act / [2] Article 12(1) of the Constitution of the Republic of Korea, Article 1(1) of the Criminal Act, Article 8(1) of the former Copyright Act (wholly amended by Act No. 3916 of Dec. 31, 1986) (see current Article 2 subparag. 24), Article 2 subparag. 16 of the former Copyright Act (wholly amended by Act No. 8101 of Dec. 28, 2006) (see current Article 2 subparag. 24 of the Copyright Act), Article 2 subparag. 24 and 25 of the Copyright Act, and Article 137(1)1 of the former Copyright Act

[1] Supreme Court Decision 2007Do8645 Decided November 11, 2010 (Gong2010Ha, 2285) Supreme Court Decision 2013Do10467 Decided November 28, 2013

Defendant

Prosecutor

Suwon District Court Decision 2017No2160 decided October 30, 2017

The appeal is dismissed.

The grounds of appeal are examined.

1. Violation of the Copyright Act around March 2, 2009

A. In a case where a single and continuous criminal intent commits various acts falling under the name of the same crime continuously for a certain period and the legal benefits of damage are the same, such various acts should be punished as a single comprehensive crime: Provided, That where the singleity and continuity of a criminal are not recognized or the method of committing a crime is not the same, multiple crimes constitute substantive concurrent crimes (see, e.g., Supreme Court Decision 2007Do8645, Nov. 11, 2010).

B. On March 2, 2009, the lower court acquitted the charge of this part of the facts charged after the statute of limitations of five years has expired from March 2, 2009, on the ground that the violation of the Copyright Act due to the publication of the original edition of “○○○○○○○○” book (hereinafter “instant book”) and the violation of the Copyright Act due to the publication of the first revised edition of the instant book, etc. on March 10, 2012, did not constitute a comprehensive crime.

(1) The first revised edition of the instant book and the first revised edition of the instant book are different. The first revised edition of the instant book were different from the original edition of the instant book, and there were different co-authors, such as adding contents different from the original edition of the instant book and adding new authors. The publishing company appears to have published the revised edition regardless of the Defendant.

(2) The author may anticipate that if all already printed books are sold, additional books will be printed and published, but it is difficult to anticipate that the author will issue additional books with additional descriptions.

C. Examining the reasoning of the lower judgment in light of the record, the lower court did not err by misapprehending the legal doctrine on the number of crimes and criminal intent under the Copyright Act, contrary to what is alleged in the grounds of appeal

2. Violation of the Copyright Act on September 20, 2015

A. Article 137(1)1 of the Copyright Act provides that “a person who makes a work public under the real name or pseudonym of a person other than the author shall be subject to criminal punishment.” Article 2 Subparag. 25 of the Copyright Act provides that “a person who makes a work public by means of public performance, public transmission or display and by other means and publishes a work.”

With respect to “publication” of a work, which is a type of publication, the Copyright Act was amended as follows. Article 8(1) of the former Copyright Act (wholly amended by Act No. 3916, Dec. 31, 1986; hereinafter “former Copyright Act”). The Copyright Act amended by Act No. 3916, Dec. 31, 1986 provides that “publication means reproduction and distribution of a work, etc. for demand of the general public (Article 2 subparag. 16)” (wholly amended by Act No. 8101, Dec. 28, 2006) refers to reproduction and distribution of a work or sound to meet the demand of the general public” (Article 2 subparag. 24 of the former Copyright Act). The same is also the current Copyright Act.

Here, the question is whether the meaning of “duplicating and distributing” refers to “duplicating and distributing” or “duplicating and distributing”.

The term “publication” refers to a prior expression that widely reveals to many people; “publication” refers to a type of “publication” under the Copyright Act; “publication” refers to a mere reproduction of a work. They cannot be deemed to be a publication. Moreover, the term “publication and distribution” refers to the door-keeping that generally has the meaning of “abund” in the context of use between the word and the word. Therefore, the term “publication and distribution” as referred to in the above provision may be interpreted as “an act of reproducing and distributing a work.” In addition, the term “publication” under the former Copyright Act is defined as an act of reproducing and selling or distributing a work. The term “publication” under the current Copyright Act appears to have been defined as “an act of reproducing and distributing a work” under Article 8 of the former Copyright Act, and there is no reason to deem that the provision on “publication” is amended to define other meaning. Meanwhile, penal provisions under the principle of no punishment without law should be interpreted and applied in accordance with the language, and it should not be interpreted as “an act of reproducing and distributing a work excessively unfavorable to the Defendant.”

B. On September 20, 2015, among the facts charged in the instant case, the lower court upheld the first instance judgment convicting the Defendant on the ground that it was difficult to deem that there was an act of “disclosure”, which is the constituent element of the penal provision of the instant penal provision, for the following reasons. The reason is that the third revised edition of the instant book was printed on September 20, 2015, and immediately after the entry into the warehouse of △△△△△△△△△△△△△△△△△△△△, the third revised edition of the instant book was in the state of being seized from the prosecution and released to the public, and it cannot be deemed that the third revised edition of the instant book was accessible to the public by means

Examining the reasoning of the lower judgment in light of the aforementioned legal principles, the lower court’s determination is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine

3. The prosecutor's appeal is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)