Creditor (Law Firm Seoin, Attorneys Park Jae-hee et al., Counsel for the plaintiff-appellant)

Non-Engine Co., Ltd. and one other (Law Firm Dried Law, Attorneys Park Sung-sung et al., Counsel for the plaintiff-appellant)

Seoul Eastern District Court Order 2017Kahap10360 dated November 24, 2017

1. The decision of the first instance shall be revoked;

2. On September 1, 2017, the Seoul Eastern District Court 2017Kahap10152, a creditor filed an application for provisional injunction against the debtor, the above court’s provisional injunction against the motion for provisional injunction against the motion for injunction against the motion for the corresponding part of the motion for provisional injunction against the creditor is dismissed.

3. The total costs of the lawsuit shall be borne by the obligee.

1. Purport of the creditor's request;

The decision of provisional disposition as stated in the Disposition No. 2 (hereinafter referred to as the "decision of provisional disposition in this case") shall be approved.

2. Purport and purport of the objection by the debtor;

The same shall apply to the order.

1. Basic facts

The following facts can be recognized by the records of this case or are remarkable in this court.

A. The relationship between the parties

On February 24, 1998, a creditor was put to the senior secretary (hereinafter referred to as “the deceased”), among the △△△△△△ Group, who was deceased at the △△△△△△△△△△ Hospital (hereinafter referred to as “JSA”). The debtor company is a producer who produces the film of this case in the location of the deceased’s death, and the debtor 2 is also a film supervisor who is in charge of the preparation and transmission of scenarios of the film of this case.

B. A final and conclusive judgment that recognized the initial investigation of the death case of this case as insufficient

On December 8, 1999, the creditor, the creditor's wife, and the deceased's birth (hereinafter "creditor, etc.") against the Republic of Korea on the ground that "the military investigative agency intentionally concealed the truth of the deceased's death or fabricated the case, and the investigator in charge neglected his/her official duties, such as conducting the necessary investigation." The Seoul Central District Court (9hap103871) sentenced the Seoul Central District Court (2002Na1381) to dismiss all claims of creditors, etc. on January 31, 2002. However, the Seoul High Court (2002Na13814) judged on February 17, 2004 that "the first investigation of the deceased's death was insufficient to make it clear about the substance of the case, thereby infringing the creditor's right to know, etc., and the above Supreme Court (2004Da14932, Dec. 27, 2006) rendered a judgment of partly citing the above final appeal.

C. Progress after the judgment

On July 29, 2005, the Special Act on Finding the Truth of the Deceased on the Death of the Deceased was established on July 29, 2005, and Article 3 of the same Act was established. On November 2, 2009, the Committee for Finding the Death of the Deceased, the Committee for Finding the Death of the Deceased was recommended to recognize the deceased as the deceased’s death on the ground that “The deceased’s motive and grounds for suicide are insufficient, and the circumstances and grounds for the death of the deceased are unclear, and it is not possible to ascertain whether the deceased committed suicide or was dead or the circumstances leading to the death of the deceased.” Thereafter, the Anti-Corruption and Civil Rights Commission recommended on August 6, 2012 to recognize the deceased’s death as the deceased’s death during performing official duties, unless there is any other clear evidence to acknowledge that the deceased died without relation to his/her normal duties, and thus, it is reasonable to treat him/her as a death during official duties.”

D. The process of consultation on the production of the motion picture of this case

1) On March 7, 2012, the debtor 2 obtained a written consent from the creditor to film the deceased’s death incident, but agreed to conclude a contract again with the producer at the time of production of the film.

2) Upon the lapse of three years from March 7, 2012, the debtor company demanded that the creditor enter into a contract on the motion picture against the deceased’s death in September 2015.

3) On September 7, 2015, after being provided with the scenarios from the obligor on September 7, 2015, the obligee sent to the obligor a letter verifying the content that “the obligee’s contents suggesting the obligee to be a person who reflects only due to the obligee’s death in the active service after manipulatinging and breaking the case to commit suicide, and then destroying the obligee’s honor, and there exists any content that greatly defames the deceased’s honor, so the obligee cannot agree to film the deceased’s death.” On October 16, 2015, the obligee inserted the name of the film appearing in the first half of the film, the name of the case, and the case to be created with the shot, and the content that the producer’s will is different from the real film in publicity.”

4) On August 8, 2016, the debtor company entered into a contract with the friendly Entertainment Co., Ltd. (hereinafter “friendly Entertainment”) on the effect that “The friendly Entertainment invests a total of KRW 4.74 billion in the debtor company for the production of the film of this case (excluding value-added tax) and receives part of the profits from the film of this case from the debtor company.”

5) On August 30, 2016, the obligor sent scenarios revised as of August 28, 2016, and scenarios revised as of January 23, 2017 by electronic mail to the obligee on December 24, 2016. Although the obligee did not reply by electronic mail, the obligor commenced the film shooting pursuant to the obligor’s scenario as of February 23, 2017 (hereinafter “instant scenario”).

6) Upon the commencement of the film shooting of the instant film, on April 12, 2017, the creditor sent to the debtor company a document verifying contents that “the term of validity of the motion picture film agreement has expired, and the creditor has already rejected the film film filming on the grounds of defamation and interference with the truth-finding of the bereaved family through the content-proof mail as of September 15, 2015. The modified scenario also undermines the creditor’s honor, and distorted the cause of the deceased’s death, etc., and thus, cannot consent to the film filming.” On April 26, 2017, the creditor filed an application for provisional injunction against the debtor on the same day.

7) On the other hand, on April 13, 2017, friendly Entertainment, for which the obligee received a motion picture and applied for provisional disposition from the obligee, expressed the obligee’s intent that “I will suspend the payment of the production cost because I would not obtain consent to the production of the motion picture from the deceased’s bereaved family members, and the obligor violated the initial agreement on the frequency of filming.”

E. The process of investigating the cause of the deceased’s death recognized in the judgment

1) On February 20, 1965, a creditor was from the Army Academy △△△△△, who was in the Army as Second Lieutenant on February 20, 1965, and was transferred to reserve service after completing active duty service on November 30, 1997. Meanwhile, on February 25, 1992, the deceased transferred the Army Academy to the △△△△△△, who was in the Army, to the Army Academy, and was assigned to the so-called Army on March 1, 1996. On January 20, 198, the creditor was assigned to the △△△△△△△△△△, the △△△△△△△△△△△△△△.

2) The deceased was found to have died at the underground exhaustion of 241 GP around February 24, 1998 while working in the YA as the second head of YSA, and the deceased was found to have been on the ground of death, and the deceased was found to have been on the ground of death, which led to the left public play from the right public play.

3) According to the circumstances examined at the deceased’s death site, the deceased 1 was found to be in the vicinity of the engine gun fluoral fluoral fluor, fluor, etc., fluor in the body fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor.

4) After the death of the deceased, the military police officer of the first Team of the Army started an investigation jointly with the U.S.A. military investigation group from February 24, 1998, and the military police officer of the first group of the Army transferred the investigative authority from the first group of the Army to April 29, 1998, concluded that “the deceased committed suicide with his own gun.” As to this, the non-applicant 2, who is a legal officer of the New York state of the U.S., called “the deceased’s total gun, seems to be in a close place, not the deceased’s gun, and the left floor of the deceased’s gun should be deemed to be a defensive attack, and therefore, the deceased’s bereaved family, civic group, etc. demanded to identify the truth of the death case.”

5) From June 1, 1998 to November 29, 198, the Prosecutorial Division of the Army Headquarters, who conducted a re-investigation, concluded that the deceased was “the deceased’s suicide.” After investigating the deceased’s non-applicant 2, etc., the National Assembly was conducting an investigation by organizing a truth-finding subcommittee. During the aforementioned investigation process, it was revealed that there was a contact between the staff of the JSA Cheongdong-gu, JSA, and that there was a public opinion demanding re-investigation. From December 9, 1998, the Ministry of National Defense organized a special joint investigation team, and conducted a re-investigation on April 14, 1999, that “The deceased’s two governments and the head of the Seocheon-gun was 20cc away from the deceased’s suicide, and there was no fear of the deceased’s suicide with the deceased’s external resistance, and there was no fear of the deceased’s injury in terms of the location and resistance of the deceased’s work.”

F. Major contents of the scenario in this case ( December 24, 2016)

1) The “contin” was in reserve service to be retired from the Army as the lieutenant of the Army in the Army, and the “contin,” which is one of the children, was the middle of the Army in the Army in the Army in the territory of the city of △△△△△△△△, and the “contin,” on February 24, 1998, was found in the same form as at the time the Deceased was discovered at the 241 GP located in the 241 GP.

2) Since then, the Korea-U.S. Joint Investigative Team announced a private person on a white spot as a suicide, discovered that the white spot, etc. was discovered with the deceased, and then filed an objection to the investigation of the military. However, the Gun concluded that the deceased died once again. The Gun concluded that the general medical specialist in the U.S. would seek opinions on the deceased’s private person, and that “the deceased will be highly likely to be killed,” and that “the general opinion is not a contact with the above medical person, but a neighboring company, and the tranes of the Do-do-do-do-type were examined” by opening an open debate with the above medical person, stating that “the general opinion of the deceased is not a contact with the deceased, and a hearing is held in the National Assembly, and the Ministry of National Defense followed the special investigation team, but the Ministry of National Defense concluded that the suicide was committed once again.

3) In the process of such an investigation, it is revealed that a single person who was higher than the North Korean forces prior to the death of the present port of view was killed through the North Korean unit, and that there was a North Korean contact between the JSA staff in Cheong-gu and the North Korea.

4) After the announcement of the Special Investigation Committee by the Ministry of National Defense, the Batin filed a lawsuit claiming compensation with the court, and the court revealed that the truth of the private person on the Batin cannot be identified, thereby citing the claim for compensation of Batin.

G. Details of the decision of provisional disposition of this case

1) On April 26, 2017, the creditor filed an application with the Dongdong District Court (2017Kahap10152) for a provisional injunction against photographing the motion picture of this case including the contents in the separate sheet No. 1 in the separate sheet No. 20152). On September 1, 2017, the above court rendered a provisional injunction against the creditor on the motion picture of this case on the following grounds: (a) the debtor shall not produce, screen, or dispose of the motion picture in the separate sheet No. 2 “in the production and screening of the motion picture of this case” and “specific corresponding parts” with the content acknowledged as the infringement; (b) the creditor shall not produce, screen, or dispose of the motion picture; (c) the creditor shall pay KRW 5,00,000 per day of the violation; and (d) the enforcement officer shall publish the purport of each of the above orders in an appropriate manner; and (c

2) As the obligor filed an objection against the instant provisional disposition order with the Seoul Eastern District Court (2017Kahap10360), the said court decided to authorize the instant provisional disposition order on November 24, 2017, and the obligor filed the instant appeal.

2. Summary of the parties' arguments

A. Summary of creditor's assertion

1) The contents of the attached list 1 List 2 are as follows: (a) the deceased died while performing an illegal act of investigating the internal irregularities; and (b) the deceased actually may have been killed by a person inside the North Korean forces or North Korean forces; (c) it is likely that the deceased would have been killed by creating a false fact as to the cause of the death of the deceased, thereby infringing the deceased’s honor and right of post-determination

2) The content stated in the attached list 1 list 3 is that ① the creditor might be mistaken for the abuse of his authority as a reserve commander, such as personal contact with the Army Chief of Staff for the truth-finding, or mobilization of old fathers, ② the contents leading the fact-finding of the deceased’s death and leading the obligee to the fact-finding of the deceased’s death, and that the obligee could be mistaken for the obligee’s suffering and effort; ③ the obligee’s family relationship may be mistaken for the obligee’s family relationship, such as the obligee’s failure to make efforts or interference with it; ④ the obligee’s conclusion that it is impossible for the obligee to find the truth-finding; ④ the obligee’s failure to accept the conclusion that it is impossible for the obligee to find the truth-finding; and ④ the obligee’s reputation and personality rights may be mistaken for the obligee to be resolved by the military doctor, such as the end, etc.

3) Nevertheless, the debtor is trying to produce and present the motion picture of this case, including each of the above parts, in disregarding the obligee’s explicit opposite expression of opinion. Since the motion picture of this case is advertised and publicized that the motion picture of this case is being produced on the basis of the deceased’s death case, there is a need to prohibit the production, screening, and disposal of the motion picture including each of the above parts

B. Summary of the debtor's assertion

1) Since the nature of a film is a creative production that serves as a master structure, it is inevitable to process and color historical facts even in cases where the film is actually located. Moreover, if the film is produced for the public interest purpose of causing social concern and awareness about the issue of military literature, it is inevitable to use various extreme effects and film-making devices more inevitable. Meanwhile, as long as there is no serious damage to the personality rights of creditors and the deceased directly, the obligor has the right to freely make decisions on the whole process of the film creation by freedom of arts. Therefore, insofar as there is no serious damage to the personality rights of creditors and the deceased, the obligor’s freedom of art or expression related to the production, screening, etc. of the film of this case should be protected.

2) In particular, ① the film of this case was produced for the public interest purpose to form a public opinion on the necessity for the establishment of a social system to prevent the sacrificians from causing social interest in the case of the military, ② the obligor made efforts not to impair the honor of the obligee and the deceased by reflecting the obligee’s opinion to the maximum extent possible, etc., and Article 4 of the Motion Pictures Agreement prepared by the obligee stated that the motion picture of this case may not be in accord with the actual facts. ③ The deceased’s death case is already dealt with in a large number of media media, so it is not likely for the public to confuse the substance of the case due to the motion picture of this case, and the contents that the deceased’s bereaved families did not consent to the production of the motion picture of this case are already reported to the media. ④ The obligor is not aware or easily able to know that the motion picture of this case was created differently from the deceased’s intentions, ④ the obligor is clearly different from the actual fact, and it cannot be viewed that the content of the motion picture of this case was in fact.

3) The film of this case, as a whole, describe the white real as a person with a strong sense of justice and mind in the military, and also describe the death of the son as a suicide in the situation where the son is manipulating it as a suicide. As such, the film of this case is described in a defined form of hedging the truth in line with the vested right, the obligee cannot be deemed as seriously damaging the obligee or the deceased’s reputation or personal right solely on the basis of some contents.

3. Determination

(a) Scope of the court's adjudication

In the production and screening of the motion picture of this case, the creditor filed an application for provisional disposition with the content that he/she shall not make any disposal of the motion picture of this case to a third party, including the content indicated in the separate sheet No. 1, and the court of first instance accepted the application for provisional disposition only for the part that is recognized as infringement in the separate sheet No. 2 and the corresponding part of the separate sheet No. 2 among the creditor's application, and the debtor filed an objection against the above decision, but the provisional disposition ruling of this case was authorized by the debtor, and only the debtor filed an appeal, the scope of the judgment per instance is limited to the scope cited in the provisional disposition ruling of this case.

B. Relevant legal principles

1) Generally, film is a creative production that enables virtual human rights to be developed by producers, including scenario writers and film supervision, under the premise that it would normally be an abandoned production. However, the case or human rights actually existed at the time of inducing public interest and impulses. Meanwhile, the freedom of art guaranteed by Article 22 of the Constitution providing that “all citizens shall have the freedom of learning and arts.” The freedom of art, including the right to arbitrarily decide on creative materials, creative forms, and creative processes, includes the freedom of artistic expression that can be displayed, performed, and disseminated to the general public. However, since such freedom of art is not unlimited fundamental rights, it should not directly infringe on other persons’ rights, reputation, public morals, or social ethics (see, e.g., Constitutional Court Decision 9Hun-Ba17, May 13, 1993) and thus, it should not be deemed that the victim’s personal rights were infringed upon by the victim’s right of personality or his/her right of reputation, etc., which is an infringement on the victim’s right of moral rights.

2) In the case of commercial movies produced for commercial purposes by selecting the general public as the viewing floor, even on the basis of historical facts, coloring historical facts by the film producer for commercial entertainment or the reduction of spectators may be permitted to be an essential area of commercial movies unless it does not reach the intentional display of bad faith. In addition, on the premise that as a general official dealing with commercial movies does not coincide with the actual facts, it is necessary to consider the fact that the film producer is allowed to view the film while recognizing and maintaining a tension between such historical facts and dynamics (see Supreme Court Decision 2007Da3483, Jul. 15, 2010).

C. Specific determination

(1) As to the existence of a preserved right

1) Whether the deceased’s honor and ex post facto personal rights are infringed (the part to be recognized as infringement in attached Table 2 List No. 1)

The scenario in this part was found to have been killed by the internal forces of the military to prevent the death of the deceased, and the first instance court determined that even if the cause of death of the deceased was not revealed until now, it infringed the deceased's honor and right of ex post facto personal attack by creating the fact of the death of the deceased. The first instance court determined that the deceased's reputation and right of ex post facto personal attack was infringed by creating the fact of the death of the deceased.

However, in full view of the following circumstances acknowledged by the records of this case, even if the scenario content is described as if the cause of the death of the deceased was revealed, it is insufficient to view that it infringes on the deceased’s honor or right to post-determination.

① With respect to the case of death of a single-type pen, the white paper does not intend to conduct a single-use and arbitrary investigation from the beginning, but it was inevitably difficult for the military to conduct a lawful investigation due to the internal corruption, and the scenario in this case includes the following contents: (i) that one-use pen was promised to find the mother of a single-use pen (SY42, 97) or that one-use pen was promised to find a single-use pen without any string with common people's name, Chinese-type pen and non-titled bottle, etc. (SMa101, 105, 129). In light of the overall contents of the film in this case, the film in this case contains a definition and expression as a person with strong mind, who is represented by a line, bad faith, justice, tension and confrontation.

② Although there is a high possibility that the deceased was killed by a person inside the North Korean forces or North Korean forces, the obligee asserted that the motion picture of this case infringed the deceased’s honor and right to post-determination by clearly describing the deceased’s act of improper act of acting as an internal misconduct and as if the deceased died. However, there was three additional investigations as to the cause of the deceased’s death, and the Special Act on Finding the Truth of the Military Literature History on July 29, 2005 was enacted upon the deceased’s death, and the Military Literature Finding Committee established under the above Act reviewed the deceased’s death case on November 2, 2009, even if the deceased’s motive and ground for suicide was insufficient, and the conditions and basis for the death of the deceased cannot be identified as to the deceased’s death.

③ Even if a debtor who produces a film is deemed to have caused death in connection with an internal corruption in the military for the extreme elements of the film in a situation where it is impossible to ascertain the deceased’s truth about the deceased’s death, it is difficult to view that it exceeds the scope of freedom of art and expression recognized in the production of commercial movies, the essence of which is entertainment, commerce, and sacrific composition.

④ Furthermore, it is difficult to readily conclude that the film of the scenario of this case, like the obligee’s assertion, interfere with the truth-finding of the deceased’s death case, by enhancing the social interest and awareness of the death of the deceased in the future, thereby identifying the truth of the deceased’s death case and contributing to the obligee’s efforts to restore honor. As such, it is difficult to conclude that the film of the scenario of this case interferes with the deceased’s death case.

2) Whether an obligee’s reputation and personality rights were infringed

A) With respect to the contents that could mislead the creditor into the abuse of past authority (attached Form 2-A(A) of the attached Table 2, the part that recognized the infringement)

This part scenario content is that the creditor's obligee's participation in the investigation procedure of the deceased by taking advantage of the status of the reserve head group or by drawing up the past parts and thereby acquiring investigation data by forging official documents. The first instance court determined that the creditor's reputation and personality rights were damaged by describing it as the reserve head group that unfairly abused the creditor's powers.

However, in light of the overall content of the scenarios in this case, it is difficult to expect that the substantial truth about the death of the deceased is revealed in accordance with due process, and in the situation where the military authorities where the death of the deceased of the deceased of the deceased of the deceased of the deceased of the deceased of the deceased of the deceased of the deceased of the deceased of the deceased of the deceased of the deceased of the deceased of the deceased of the deceased of the deceased of the deceased of the deceased of the deceased of the deceased of the deceased of the deceased of the deceased of the deceased of the deceased of the deceased of the deceased of the Republic of Korea, even if the film contents are indicated as above, it is difficult to view that the deceased of the deceased of the deceased of the deceased of the deceased of the deceased of the deceased

Therefore, even if this part of scenario content includes the content of the biomatic structure, it is insufficient to view that it infringes on the honor or personal rights of the creditor.

B) With respect to the content of reducing the suffering and effort of the creditor (attached Form 2-B(b) of the attached Table 2)

The first instance court determined that this part of the scenarios would damage the honor and personality rights of creditors because it could be mistaken only for the case of death of a white sloping consciousness and the pain of other bereaved families could be mistaken for the pain of other bereaved families.

However, the scenario of this case includes the contents of the military authority’s proposal (SMa87, 88, 129, 133) that the issue of the military doctor’s will is not a matter of its own child, but a matter of the whole of the military doctor’s will occurring in the armed forces of the Republic of Korea, and that the mother of the Han-type pen is divided into one another, and that the military doctor’s will to see the issue of the military doctor’s will (SMa87, 88, 129, 133). In light of the overall contents of the film of this case, it is difficult to view that the scenario of this part alone can be mistaken for the creditor as a ethic person, and thus, it infringes the creditor’s honor or personal right.

C) With respect to the contents that could mislead the creditor's family relationship (attached Form 2-C. 2-C)

The first instance court determined that this part of the scenario content would impair the honor and personality rights of creditors by describing it in the best way that he neglected to his family.

However, it is difficult to view this part of scenarios as infringing on a creditor’s honor or personality right because they can be mistaken for a creditor as a person who neglected to his family, in light of the fact that the entire reduction distance of the film of this case is prone to all his own, and that the whole reduction distance of the film of this case is prone to the causes of death of a child, etc. (SMa2, 104, 105).

D) With respect to the same conclusion that is resolved by a military doctor (attached Form 2(d) of the attached Table 2).

The first instance court determined that the obligee’s reputation or personal rights are damaged because it may be mistaken for misunderstanding that the content of this part of the scenario is impossible for the obligee to ascertain the truth or that the obligee would have renounced the efforts to discover the truth after the court’s judgment or re-reconvened its position after accepting the court’s judgment that the content of this part of the scenario is impossible to ascertain the truth.

However, this part of scenarios are difficult to be mistaken for the obligee to have taken advantage of the court’s ruling that the bio is the part of the block and the blocks of the blocks, that the blocks are rhyd with the blocks of the blocks, that is, the blocks of the blocks with the blocks of the blocks of the blocks, and that the blocks of the blocks of the blocks of the blocks of the blocks of the blocks of the blocks of the blocks of the blocks of the blocks of the blocks of the blocks of the blocks of the blocks of the blocks of the blocks of the blocks of the obligee.

(3) Other circumstances to be considered in determining the preserved right.

In light of the purport of the Constitution guaranteeing the freedom of arts, ① in the production of commercial films based on historical facts, coloring historical facts should be permissible to a certain extent in order to raise commercial entertainment and the appreciation of the audience. ② The film producer’s caption clearly stated each color facts on a caption screened so as to facilitate the general audience to recognize that the contents of the film are different from the actual facts, or take appropriate measures to prevent confusion with the deceased’s death during film publicity, thereby protecting the deceased’s honor or the obligee’s personality rights. ③ Even if the scenario contains some contents infringing on the deceased’s reputation or the obligee’s personality rights, it is insufficient to view that the core contents were seriously damaged to the extent that it would prohibit the production of the film itself, and it is difficult to view that the obligee’s right to file the petition for provisional injunction has been sufficiently explained by fully considering the following factors: (a) the film producer’s right to the motion picture production in the instant case’s presentation of the motion picture with a view to causing social attention and awareness about the issues of the military; and (b) the obligee’s right to file the petition for provisional injunction.

(2) As to the necessity of preservation

According to the records of this case, if Masung Entertainment Co., Ltd., an investor of the motion picture of this case, rescinded the contract on investment in the motion picture of this case against the debtor non-Engine, it filed a lawsuit seeking the return of the investment amount (Seoul Central District Court 2017Gahap54810). The above court rendered a favorable judgment in favor of the plaintiff on June 14, 2018 that the above debtor would return the investment amount to the above debtor, and the above judgment became final and conclusive as it was not appealed by the debtor, and the debtor could actually waive the production of the motion picture of this case. Thus, it is difficult to deem that the motion of this case seeking the prohibition of the production and screening of the motion picture of this case needs to be preserved.

4. Conclusion

Therefore, the application of this case shall be dismissed because there is a lack of vindication of the right to preserve and the necessity of preservation, and the decision of the first instance court is unfair as it concludes otherwise, and thus it shall be revoked, and the decision of this case shall be revoked, and the creditor's application for provisional disposition shall be dismissed, and it shall be so decided as per Disposition.

Judges Engine (Presiding Judge)