Defendant 1 and six others

Both parties

Kim Jong-chul (prosecution) and a new flag (trial)

Law Firm Gangnam-nam et al.

Suwon District Court Decision 2015Ma4722 Decided April 28, 2017

All convictions against the Defendants in the judgment of the court below are reversed.

Defendants shall be punished by a fine of five million won.

If the Defendants did not pay each of the above fines, the Defendants shall be confined in the Labor House for the period of 10,000 won converted into one day.

To order the Defendants to pay an amount equivalent to the above fines.

The Defendants are not guilty of violating the Copyright Act.

The appeal on the part of innocence against the Defendants by the prosecutor is dismissed.

The summary of the judgment of innocence against the Defendants is published.

1. Summary of grounds for appeal;

A. Defendants

1) misunderstanding of facts and misapprehension of legal principles as to the violation of the Copyright Act

A) The assertion that there was no public contest relationship from the revised board (Defendant 1, Defendant 3, Defendant 2, and Defendant 7)

Around 2009, in issuing the draft of the “○○○○○○” book (hereinafter “instant book”), there was consent to registering Nonindicted 3 as author, who did not participate in the literary work. However, around March 10, 2012 and around September 10, 2013, each of the instant book’s revised boards (hereinafter “instant book”) was issued. There was no such consent, and there was no fact that there was a conspiracy between them, and thus, it does not constitute a co-principal because the subjective requirements and objective requirements of the co-principal are not satisfied.

B) The assertion that there was no public contest relationship from the first board (Defendant 4, Defendant 5, Defendant 6)

The Defendant does not agree to register Nonindicted 3 as a co-principal in the issuance of the instant book (including the original edition). Even if Nonindicted 3 consented to the registration of Nonindicted 3 as a co-principal in the issuance of the instant book, there is no such consent in the issuance of the first and second revised editions, and there is no fact that there is any conspiracy between them, and thus, it does not constitute a co-principal, since the subjective requirements and objective requirements of co-principal are not satisfied.

C) The assertion that the publication does not constitute a “disclosure” under the Copyright Act (Defendant 1, Defendant 3, and Defendant 5)

“Publication” under Article 137(1)1 of the Copyright Act refers to the case where a work is first made public or published in the public. The first and second revised editions of this case are only new print of the first published book and do not have been made public or published in the public for the first time, and they do not constitute a crime because they do not constitute a publication under the Copyright Act.

D) The assertion that the original author’s consent does not constitute a crime (Defendant 5)

In the sense that copyright law is a crime of protecting the personal legal interests of the author, the accused registered as the author with the consent of the author can not be punished.

2) misunderstanding of facts or misunderstanding of legal principles as to obstruction of the performance of deceptive means

A) Defendant 5

If the defendant submits the books of this case as data, it is evaluated as mechanically converted points, so the act of submitting false data alone cannot be deemed as having caused specific danger of interference with the performance of official duties or interference with the execution of official duties.

B) Defendant 4

Although the Defendant submitted the instant book as data, it was conducted for the purpose of using it as basic data for promotion, reappointment, etc. as part of the faculty evaluation, it cannot be deemed that the public official duties of the public official in charge was interfered with since there was no misunderstanding, perception, and site for the determination of promotion, appointment, etc., and it was due to insufficient examination to recognize the instant book portrait as the Defendant’s research business. Therefore, there is no causal link between the Defendant’s submission of the instant book and the Defendant’s performance of public duties, namely, research recognition.

3) Unreasonable sentencing

The punishment sentenced by the court below to the defendants (the fine of KRW 12 million for the defendants 1, 2, 3, and 7, and the fine of KRW 15 million for the defendants 4, 5, and 6) is too unreasonable.

(b) Prosecutors;

1) Legal principles

On September 20, 2015, the instant book’s revised edition (hereinafter “third revised edition”) was not yet released, but at any time, if the delivery was possible, the risk of infringing the social legal interests, such as the social trust in the indication of authors, occurred, and such risk is deemed to be included in the “disclosure” as provided in the Copyright Act. Therefore, the facts charged regarding the third revised edition of the instant book should also be found guilty.

Nevertheless, the judgment of the court below which acquitted this part of the facts charged is erroneous in the misapprehension of legal principles and affecting the conclusion of the judgment

2) Unreasonable sentencing

The sentence imposed by the court below to the defendants is too uneasible and unfair.

2. Determination

A. Determination as to the assertion that the publication of the first and second revised editions of this case does not constitute a “disclosure” under the Copyright Act, and that the author’s consent was obtained (defendants 1, 3, and 5)

On the other hand, the provision of the punishment of this case under the Copyright Act is not a provision to protect the personal legal interests of "right of publication", which is one of author's moral rights, but rather a provision to protect the social legal interests of protecting the social trust of author by regulating the act of false expression with respect to author's moral rights. ② In such a case, even if the original author's consent is obtained in registering it in a false public author, it constitutes the element of the punishment of this case. ③ The concept of "public disclosure" under Article 137 (1) 1 of the Copyright Act is not necessary to be limited to the first "public announcement." ④ The first and second revised edition of the book of this case was added to the author's portrait, as well as some additional contents were added in terms of contents. ⑤ Even if the work is actually the same as the work already published, it cannot be viewed as a false act of expressing the author, and thus, it constitutes a crime of publishing the original author's consent under the Copyright Act. Thus, the Defendants' assertion that it constitutes a crime of violating the Copyright Act.

B. Determination as to the assertion that there is no consent to the first and second amendments of the book of this case (the defendants)

1) Summary of the facts charged

On March 209, Nonindicted 4 received a request from Nonindicted 3, a business employee of the △△△△△△△△△ (hereinafter “△△△△”), who is an author of Nonindicted 4’s work, to add professors, who are not the author, to the book of “○○○○○○○”, a work of Nonindicted 4, as an author, and accepted the request.

Defendant 1, Defendant 2, Defendant 3, Defendant 4, Defendant 5, Defendant 6, and Defendant 7 received a request from Nonindicted 5, Nonindicted 6, and Nonindicted 3 to add the Defendants, not the author, to the said book, the author of which was then accepted.

On or around March 2, 2009, Nonindicted 3, 5, 6, and 7 issued the post office of △△△△△△△△, located in the Simri-si ( Address 1 omitted); the Defendants, even though they are not the official winners of the “○○○○○○○○○○”, the book-marks added the Defendants to the Defendants as the official winners, were published in the name of △△△△△△△△△△△△, and the book-marks added the Defendants to the book-marks around March 10, 2012; and around September 10, 2013, the fact was issued on or around September 10, 2013.

Accordingly, the Defendants conspired with the above Nonindicted 3, Nonindicted 5, Nonindicted 6, and Nonindicted 7 in sequence, and made the work public by indicating the real name of a person other than the author as the author.

2) The judgment of the court below

In full view of the fact that the Defendants agreed to add their names to the official seal at the time of the publication of the instant book, and if the instant book was issued without being cut off, it could have anticipated that the Defendants’ names could be published, and that the Defendants’ names could have been published, and that the Defendants did not remove their influence on the commission of the instant crime, such as demanding that the Defendants’ names be withdrawn from the official seal register after the publication of the instant book until the date of the publication of the first and second revised editions, the lower court determined that the Defendants conspired with Nonindicted 3, etc. by consenting to the entry of the first of the instant book as the official seal, and that the Defendants continued to maintain their public relations until the time of the publication of each of the instant book, and that this part of the facts charged was guilty.

3) Determination of the immediate deliberation

In light of the following circumstances revealed by the evidence duly adopted and examined by the lower court, ① the Defendants stated that they were unaware of their publication at the time of publication of the first and second revised editions from investigative agencies to the trial of the political party, ② the first and second revised editions were different from the original editions of this case, and any other content was added to the original editions of this case, and Nonindicted 1’s second revised editions did not have any effect on the original editions of this case’s publication, and thus, it is difficult to view that the Defendants, as the first revised editions of this case’s second revised editions of this case’s second revised editions of this case’s second revised editions of this case’s second revised editions of this case’s publication of the first and second revised editions of this case’s publication of this case’s publication of the first revised editions of this case’s publication of this case’s publication of the first and second revised editions of this case’s publication of the first revised editions of this case’s publication of the second revised editions of this case’s publication of this case’s publication.

C. Judgment on the assertion that the Defendants’ act does not constitute a crime of obstruction of performance of official duties by fraudulent means (Defendant 5, Defendant 4)

Although the Defendants asserted to the same purport as the grounds for appeal, the lower court rejected the Defendants’ assertion after explaining the specific circumstances of this case. Examining the lower court’s fact-finding and judgment in comparison with records, the lower court’s determination that found the Defendants guilty of this part of the facts charged is just and acceptable, and there is no error of law by misunderstanding of facts or misunderstanding of legal principles affecting the conclusion of the judgment.

D. Judgment on the misapprehension of the legal principle of prosecutor

Examining the reasoning of innocence of the lower judgment and the records of this case closely, the lower court, based on its reasoning, found that the third revised edition of the books of this case could not be seen as being open to the public, and thus there was no "disclosure" which is punished under the Copyright Act, and thus, was justifiable in rendering a judgment not guilty of this part of the charges, and the evidence submitted by the prosecutor alone is insufficient to recognize that the Defendants' act constituted "disclosure" under the Copyright Act. Thus, the prosecutor's above assertion is without merit ( even if it constitutes publication, it cannot be deemed that the Defendants consented to the registration of the author in relation to this part of the publication, and thus, the prosecutor's assertion is without merit).

3. Conclusion

Therefore, since the appeal by the Defendants among the judgment below is well-grounded, it is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and since there is no ground to appeal on the part of innocence by the prosecutor against the Defendants, all of them are dismissed in accordance with Article 364(4) of the Criminal Procedure Act. It is so decided as follows without examining the judgment on the grounds of unfair sentencing by the Defendants and the prosecutor

The summary of the facts constituting the crime recognized by this court and the evidence related thereto are deleted from the facts constituting the crime of the judgment below, and the "the statement in paragraph (1)" in Articles 2, 3, 4, 5, 7, 8, and 9 are modified to "the defendants are listed as false public reporters," as stated in each corresponding column of the judgment of the court below, so they are quoted as they are in accordance with Article 369 of the Criminal Procedure Act.

1. Article relevant to the facts constituting an offense and the selection of punishment;

A. Defendant 1, Defendant 2, Defendant 6, and Defendant 7: Articles 314(1) and 313 of the Criminal Act (a point of interference with business) and each of the fines is selected.

B. Defendant 3, Defendant 4, and Defendant 5: Each criminal law Article 137 of the Criminal Code (the point of obstructing the performance of official duties by fraudulent means) and each fine is selected.

1. Aggravation of concurrent crimes;

Defendants: former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act

1. Detention in a workhouse;

Defendants: Articles 70(1) and 69(2) of the Criminal Act

1. Order of provisional payment;

Defendants: Article 334(1) of the Criminal Procedure Act

The Defendants, as a representative of our society, are professors of high level of ethics as educators. Nevertheless, the Defendants, who are not authors, presented books adding their names as authors to their own research results, and the Defendants, who should show the model figures, shows students and schools’ misconduct, and thus, the Defendants’ liability for the crime is not easy. Furthermore, as in the instant case, even if certain university professors are not public figures, there was an erroneous practice adding their names to others’ author’s author’s author’s author’s author’s author’s author’s author’s author’s author’s author’s author’s author’s author’s name in order to eradicate such practice. Thus, the Defendants need to be punished strictly.

However, with respect to the defendants' violation of the Copyright Act, the defendants 1, 2, 4, 5, and 6 are first offenders, and the defendants 7 have no record of criminal punishment except for the punishment of fines twice for the crime of this case. After the crime of this case, it appears that the defendants were in a sincere position as university professor. After the crime of this case by submitting the books of this case as their research performance, it seems that the defendants did not have actual profits, even though they did not have actual profits, and other various circumstances, such as the defendants' age, character and conduct, the process and motive leading to the crime of this case, and circumstances before and after the crime of this case, etc., which are the conditions for the punishment as set forth in the records and arguments of this case, shall be determined as the Disposition.

The summary of the violation of the Copyright Act among the facts charged in the instant case is the same as that of Article 2-2(b)(1). This constitutes a case where there is no proof of crime as seen in Article 2-2(b)3, and thus, a not-guilty verdict is rendered pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the summary is to be publicly announced pursuant to Article 58(2) of the Criminal

Judges Choi Sung-ro (Presiding Judge)