(영문) 부산지방법원 2010.1.14.선고 2009노3917 판결

A defendant shall be punished by a fine of KRW 700,000. If the defendant does not pay the above fine, the defendant shall be confined in a workhouse for a period calculated by converting 60,000 won into one day: Provided, That the fractional amount shall be discarded, and an amount equivalent to the above fine shall be discarded. The order of provisional payment

Reasons

1. Summary of grounds for appeal;

A. Error of mistake

Although the Defendant purchased through the rice Luxembourg market and used the computer program on the computer without knowing that the computer program recorded in the facts charged in this case was illegally reproduced, and some of the computer program was not used for business purposes, the lower court did not consider such circumstances and found the Defendant guilty of all of the facts charged in this case, and committed an unlawful act that affected the conclusion of the judgment by misunderstanding the fact that the lower court convicted all of the facts charged in this case.

B. Unreasonable sentencing

Considering the fact that the Defendant was a primary offender, and that the Defendant was unable to have human resources and operational experience while operating a small business entity, resulting in the instant crime, the sentencing of the lower court (2 million won of a fine) is excessively unreasonable.

2. Determination

A. Judgment on the assertion of mistake of fact

Article 29 (4) 2 of the former Computer Program Protection Act (amended by Act No. 9625 of Apr. 2, 2009; hereinafter the same) provides that if a person who acquired a reproduction of a program that was installed by infringing a program copyright knowingly uses it for his business purpose, he shall be deemed to infringe the program copyright. The following circumstances, which can be known by evidence legitimately adopted and investigated by the court below, (1) the defendant was engaged in trade of vessel machinery and parts related to vessel, and operated an office with two female employees; (2) the defendant's act of purchasing a computer program of this case was 204 Korean language 204; (5) the defendant's act of purchasing a computer program of this case was 1,00, 200, 200, 1, 200, 200, 1, 200, 200, 200, 201, 20, 200, 20, 201, 3).

B. Determination on the assertion of unfair sentencing

In light of the fact that the Defendant was a primary offender, the number of office computers used by the Defendant’s company as a relatively small size, and the process or number of purchases of the computer program indicated in the facts charged of this case, etc., the case seems to be relatively insignificant. The Defendant appears to have endeavored to fairly use the computer program by actually purchasing the fixed computer program after the control of this case. Considering the circumstances leading to the instant crime, the circumstances before and after the instant crime, the Defendant’s age, character and conduct, and family environment, the lower court’s sentence against the Defendant is somewhat unreasonable.

3. Conclusion

Therefore, since the defendant's appeal is well-grounded, the judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

Criminal facts and summary of evidence

The summary of the facts constituting an offense and evidence recognized by this court is identical to each corresponding column of the judgment below, and thus, it is cited in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Article applicable to criminal facts;

Articles 46(1)2 and 29(4)2 of the former Computer Programs Protection Act (the point of infringement of program copyright)

1. Commercial competition;

Articles 40 and 50 of the Criminal Act

1. Selection of punishment;

Selection of Fines

1. Invitation of a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act