[1] Whether the punishment of a business owner under the joint penal provision requires the establishment of an employee's crime or punishment (negative)

[2] The case affirming the judgment of the court below which held that a travel agent's employee constitutes a copyright infringement since he had the awareness of posting another person's copyrighted work at his own discretion for profit even though he was unaware of who is the copyright holder of the photograph at the time of posting the photograph on

[1] Article 103 of the Copyright Act / [2] Articles 10(2), 97-5, and 103 of the Copyright Act

[1] Supreme Court Decision 87Do1213 delivered on November 10, 1987 (Gong1988, 120)

Defendant

Defendant

Suwon District Court Decision 2005No2725 Decided September 21, 2005

The appeal is dismissed.

1. As to the punishment of business caution pursuant to the joint penal provisions

Since the punishment of a business owner under joint penal provisions is not dependent on the punishment of an employee who is a prohibited violation, but is punished independently due to the negligence in the appointment and supervision of his employee, the establishment of an employee's crime or punishment does not need to be a prerequisite for the punishment of a business owner (see Supreme Court Decision 87Do1213, Nov. 10, 1987).

Therefore, the judgment of the court below which found the defendant who is a business owner guilty of the facts charged in this case is not erroneous in the misapprehension of legal principles as to joint penal provisions.

2. As to the assertion of mistake of facts and whether the instant pictures were copyrighted

Copyright is derived from the time of writing and does not require implementation of any procedure or form (Article 10(2) of the Copyright Act). According to the records, the photograph of this case is creative, because it can be known that the photograph of this case clearly reflects the identity and creativity of the photographer in the process of selection of the body, establishment of the Gu, adjustment of light direction and quantity, establishment of the camerado, establishment of the camerado, method of shooting, such as stringer's speed, and the attachment of strings, etc., and its phenomenon and painting, etc., the photograph of this case is protected under the Copyright Act. After recognizing facts as stated in its reasoning by the evidence adopted by the court below, even though the non-indicted, an employee of the defendant, was aware that the photograph of this case was posted arbitrarily for profits of others, and thus there is no error of law by misunderstanding facts or by misunderstanding legal principles as to copyright, etc. in violation of the rules of evidence.

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)