[1] Whether “the freedom of broadcast programming” that embodys the freedom of broadcast includes freedom not to be interfered with by any broadcasting business operator, such as the modification of the content in the course of transmitting broadcast programs to the public (affirmative)

[2] In a case where Gap corporation engaged in the advertisement service business through TV recruited its members from among the subscribers of Eul corporation et al., which are CATV broadcasting business operators, and operated a commercial caption by linking the individual TV set owned by the relevant members with the cable TV set and the cable broadcasting credit set set set set and set up by Eul et al., the case holding that Gap corporation's advertisement constitutes a tort under the Civil Act by infringing Eul corporation's advertising business interests, and that Eul corporation et al. may claim the prohibition of Gap's above act and allowing a third party to do so

[3] The requirements for ordering indirect compulsory performance in preparation for a case where the next debtor fails to repay his/her obligation in the adjudication procedure for the establishment of executive title with respect to the obligation of omission

[1] In full view of the legislative purport and contents of Article 1, Article 2 subparag. 1, Article 15, Article 17, Article 4(1) and Article 4(2) of the Broadcasting Act, the freedom of broadcast programming that embodys the freedom of broadcast includes not only the freedom that a broadcasting business entity does not interfere with the planning, programming, or production of broadcast programs, but also the freedom that the broadcasting business entity does not interfere with the planning, programming, or production of broadcast programs in the course of transmitting broadcast programs to the public.

[2] The case holding that in a case where Gap corporation engaged in a television advertising service business through TV recruited many unspecified customer companies, such as restaurants, soup and soup, from among the subscribers of Eul corporation et al. which are CATV broadcasting business operators, and then connected a TV set owned by the pertinent members with a CF saw that the ratio of the street and length of the broadcast program transmitted by Eul et al. to the upper part of the TV screen is adjusted, while the broadcast program is set up at the lower part of the TV screen, and the commercial caption stored in the CF stuff was set at the request of Eul et al. separately recruited by Eul et al., but it did not infringe upon Eul's freedom of broadcast program, etc., but it constitutes an illegal competition that infringes on Eul et al.'s advertising profits, and it constitutes a tort under the Civil Act, and that Eul et al. had a third party file a claim against Eul et al. for the prohibition of doing the above act

[3] In principle, compulsory execution against an obligation of omission, which is an incidental obligation, may be conducted only indirectly, and the decision of indirect compulsory performance is based on the principle that an order shall be given to compensate for a certain amount of damages when the obligor fails to perform his/her obligation through a necessary examination of the obligor upon the obligee’s separate request after the enforcement title was established in the judgment procedure. Therefore, in the judgment procedure to establish an enforcement title with respect to an obligation of omission, indirect compulsory performance should be made in preparation for a case where the obligor fails to perform his/her obligation at the time of the closing of argument in the litigation procedure concerning the obligation of omission, even if the enforcement title ordering the obligation of omission is established at the time of the closing of argument in the litigation procedure concerning the obligation of omission,

[1] Article 21(1) of the Constitution, Article 1, Article 2 subparags. 1, 15, 17, and Article 4(1) and (2) of the Broadcasting Act / [2] Article 21(1) of the Constitution, Article 1, Articles 2 subparags. 1, 15, 17, 4(1) and (2), and 9(2) of the Broadcasting Act, Article 750 of the Civil Act, Article 30(2) of the Civil Execution Act / [3] Article 261 of the Civil Execution Act

[3] Supreme Court Decision 93Da40614, 40621 decided Apr. 12, 1996 (Gong1996Sang, 1486)

C&M Co., Ltd. and eight others (Law Firm LLC, Attorneys Jeon Tae-gu et al., Counsel for the plaintiff-appellant)

Chang Mand Co., Ltd. (LLC, Kim & Lee LLC, Attorneys Cho Won-hee et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2010Na67991 decided March 18, 2011

All appeals are dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 through 5

(1) The freedom of speech and press guaranteed under Article 21(1) of the Constitution includes the freedom of broadcasting (see Supreme Court Decision 2008Du13101, Dec. 23, 2010). Meanwhile, Article 1 of the Broadcasting Act revealed that the purpose of broadcasting is to guarantee the freedom and independence of broadcasting. Article 2 of the Broadcasting Act provides that “broadcasting” means planning, programming or producing broadcast programs and transmitting them to the public (including the addressees under individual contracts) through telecommunications equipment and facilities (see subparagraph 1), and “broadcast programming” refers to determining the type, content, quantity, time, and arrangement of broadcast contents (see subparagraph 15), and “broadcast programs” refers to broadcasting contents forming a unit of broadcast programming (see subparagraph 17), and “broadcast programs” refers to freedom and independence of broadcast programming (see Supreme Court Decision 2008Du13101, Dec. 23, 2010). In addition, it is reasonable to ensure that broadcasting business entities are not in accordance with the legislative purport of freedom or freedom of broadcast programming, etc.

According to the reasoning of the judgment below, ① the Plaintiffs are CATV broadcasting business operators operating CATV broadcasting in each broadcasting zone listed in the attached list of the judgment below with a license for CATV broadcasting business under the Broadcasting Act; ② the Defendant recruited many unspecified customer companies, such as restaurants and soup, from among the subscribers of CATV broadcasting, as a company running a business of providing advertising services through TV, etc., as its members; and ④ connect the individual TV set owned by the relevant members with the cable TV set and the cable TV license credit broadcast service set set owned by the Plaintiffs (hereinafter referred to as “CF broadcast service”); ③ accordingly, the ratio of street and length of the screen of the broadcast program transmitted by the Plaintiffs during the broadcast process was adjusted, and at the same time, the broadcast program was set up at the upper end of the TV screen and at the same time at the request of the Defendant separately recruited and stored in CFS (hereinafter referred to as “cFS advertising”); ④ In addition, the Defendant concluded a contract for a commercial caption with a third party and a branch office, thereby making the said parties know of the said fact.

Examining the above facts in accordance with the legal principles as seen earlier, there is no manipulation or change in the broadcasting program of the plaintiffs in the process of transmitting after the transmission. However, as the street ratio of the screen transmitted by the plaintiffs only on the TV screen in which the defendant's CF gambling room is installed, commercial caption was adjusted, and no influence exists on the TV screen of the plaintiffs' other subscribers. Thus, it can be deemed that the above screen operation was made only in the process of viewing after the plaintiffs' receipt of the broadcasting program, and it cannot be deemed that the plaintiffs' above screen operation was made in the process of transmitting the broadcasting program to the public. Therefore, it is difficult to view that the defendant's above CF gambling installation interfered with the plaintiffs' change in its contents in the process of transmitting the broadcasting program to the public, and it does not constitute a violation of the freedom of broadcast programming of the plaintiffs, a CATV broadcasting business operator.

Nevertheless, the lower court determined that the broadcast signals sent by the Plaintiffs were processed and altered through the Defendant’s CF boxes, thereby infringing the Plaintiffs’ freedom of broadcasting by broadcasting distorted contents of the broadcast programs that the Plaintiffs organized. In so doing, the lower court erred by misapprehending the legal doctrine on freedom of broadcasting.

(2) On the other hand, however, an act of using the result of considerable effort and investment made by a competitor without permission for one’s own business against business ethics or the order of fair competition, thereby gaining unjust profits by taking advantage of the competitor’s efforts and investment, and infringing on competitor’s legal interests worth protecting the competitor’s legal protection, constitutes an act of unfair competition under the Civil Act, which constitutes a tort under the Civil Act. In such cases, where the aforementioned state of use without permission continues to be used without permission, it is difficult to expect the effectiveness of remedy solely by ordering monetary compensation, and where the victim’s interests are greater when compared and comparing the victim’s interests protected by the prohibition of use without permission and the disadvantage of the perpetrator resulting therefrom, a claim for prohibition or prevention thereof may be filed (see Supreme Court Order 2008Ma1541, Aug. 25

According to the evidence adopted by the court below, the plaintiffs revealed the fact that a CATV broadcasting business operator operates an advertisement business in the manner of broadcasting a broadcast program with a broadcast program. The plaintiffs' interest in the advertisement business constitutes a benefit worthy of legal protection. According to the above facts, the defendant recruited many unspecified customer companies, such as restaurants and soup, from among the subscribers of the plaintiffs, as members, and connects the cF stuffs owned by the defendant with the individual TV set owned by the relevant members and the cF stuffs owned by the plaintiffs. At the same time, a broadcast program is set up at the top of the TV screen because the ratio of the horizontal and vertical length of the TV screen transmitted by the plaintiffs is adjusted, and at the same time, a broadcast program is set up at the same time at the bottom of the TV screen by the defendant's cF stuff installation. Since many unspecified viewers, who are customers using the above member companies, view the broadcast program at the same time when viewing the broadcast program, the contents of the advertisement of the plaintiffs are reduced by the concentration of viewers on the advertisements broadcasted by the plaintiffs.

The above advertising act by the defendant constitutes a tort under the Civil Act, which infringes on the plaintiffs' advertising business interest, which is a benefit of legal protection, by taking advantage of the plaintiffs' efforts and investment, and thus, constitutes an unlawful competition that infringes on the plaintiffs' advertising business interest, which is a benefit of legal protection, by using broadcasting facilities and broadcast programs established by their own effort and investment for one's own business against business ethics or fair competition order. Upon examining all the claims by the plaintiff up to the closing of argument in the court below based on the records, the plaintiff's assertion also includes the same purport.

Furthermore, according to the above facts, the defendant's above advertising act is not a single-time advertising act, but it can be seen that the plaintiffs' composite cable broadcasting holders who installed the CF gambling room owned by the defendant continue to repeat TV sets and three saws each time they turn on an emergency. In addition, considering the nature of the advertising act through the installation of CF boxes owned by the defendant, it is difficult for the plaintiffs to understand and respond to the situation where the plaintiffs installed the CF gambling room among the subscribers of the composite cable broadcasting, and the defendant's advertisement status, etc. caused thereby, it is difficult to expect the effectiveness of remedy against the plaintiffs. Therefore, considering the above prohibition of the defendant's above advertising act, it can be seen that the interests protected by the plaintiffs are significantly larger than losses to the defendant's freedom of business due to the prohibition of the defendant's above advertising act, even though the defendant's processing and alteration of the broadcasting signal transmitted by the plaintiffs to the CF gambling room owned by the defendant, not in the process of transmitting the plaintiffs's broadcast program, and it does not infringe the freedom of broadcasting after receiving it.

The court below is justified in ordering the Defendant to prohibit the above act on the ground of the circumstances as seen earlier, and there is no error of misapprehending the legal principles on the infringement of a broadcasting business operator’s business interest or the right to prohibit a tort, or violating the disposition principle. In addition, as long as the Plaintiffs can claim the prohibition of the above act against the Defendant for this reason, the court below’s error of misapprehending the legal principles on the freedom of broadcasting does not affect the conclusion

2. Regarding ground of appeal No. 6

In principle, compulsory execution against a non-performance obligation, which is an incidental obligation, can only be indirectly enforced, and the decision of indirect compulsory execution is based on the principle that an order to compensate the obligor for a certain amount of damages when the obligor fails to perform his/her obligation through a necessary examination by the obligee upon the obligee’s separate request after the enforcement title has been established in the judgment procedure. Therefore, in the judgment procedure for the establishment of enforcement title with respect to a non-performance obligation, indirect compulsory execution should be made in preparation for a case where the obligor fails to perform his/her obligation, even if the enforcement title ordering a non-performance is established at the time of the closing of argument in the litigation procedure concerning the non-performance obligation, it is probable that the obligor may violate it within a short period, and in addition, in the said judgment procedure, the pertinent amount of damages ordered pursuant to Article 261 of the Civil Execution Act can be calculated (see Supreme Court Decision 93Da40

The court below held that the court below should order the plaintiffs to pay compensation calculated at the rate of five million won per day when the violation occurred in case where the defendant committed an act of violating the duty of omission on the ground that the execution title ordering the defendant to prohibit the above advertising act, etc. is likely to be violated even if the defendant's above advertising act was established, and it is possible to calculate the reasonable amount of compensation pursuant to Article 261 of the Civil Execution Act.

In light of various circumstances, such as the defendant's above advertising act, the degree of damages suffered by the plaintiffs and the necessity of indirect compulsory performance, which can be calculated based on the records of this case, the above judgment of the court below is justifiable. In so doing, it did not err by misapprehending the legal principles as to the calculation of the compensation amount in indirect compulsory performance

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ko Young-han (Presiding Justice)