(영문) 광주고등법원 제주재판부 2020.1.10. 선고 2019누1427 판결

1. On January 20, 2016, upon the Plaintiff’s primary claim added by this court before remanding, the acceptance by the Defendant of a report on succession to the status of a newspaper enterpriser against the Defendant’s Intervenor and a disposition for registration of change of the newspaper business is invalid.

2. The supplementary intervenor’s Intervenor’s participation in the total cost of the lawsuit is borne by the supplementary intervenor, and the remainder is borne by the Defendant.

Purport of claim and appeal

The judgment of the first instance is revoked. The disposition as stated in the order shall be revoked, primarily, (the plaintiff added the main claim before remanding, and the claim in the first instance was changed to the conjunctive claim).

Reasons

1. Details of the disposition;

The following facts may be acknowledged in the absence of dispute between the parties or by taking into account the whole purport of the pleadings in each of the statements in Gap's 1 through 6, 10, 16, 17 (including family numbers; hereinafter the same shall apply), Eul's 1 through 4, Eul's 1 through 7, and 10:

A. Registration of the Plaintiff’s establishment and newspaper

1) The C Co., Ltd. (hereinafter referred to as the “C”) published a newspaper under the name of “E” and was faced with the management crisis due to financial difficulties around December 2012 (registration number F). On December 7, 2012, G of the representative director: (a) left the management of C to its executives and employees on December 7, 2012; and (b) multiple executives and employees constituted the “E Emergency Countermeasure Committee” to continue to issue E until the company’s normalization is normal.

2) On December 9, 2012, G entered into a contract under which the Emergency Countermeasure Committee and E trademark rights, ② E newspapers, ③ Internet news rights are transferred (However, regarding E newspapers and Internet news, the time limit for transfer was set by the time limit for dissolution of the Emergency Countermeasure Committee). C was processed on December 12, 2012, and G submitted C representative director resignation on the same day, but G was not regularly accepted as it was not reported to C’s board of directors.

3) The C Council ratified a contract on the transfer of rights, including trademark rights, concluded between G and Emergency Countermeasures Committee on February 5, 2013.

4) On January 24, 2013, seven co-representatives of L and other emergency countermeasure committees acquired trademark rights on three trademarks (hereinafter “each trademark rights of this case”) from C, “*”, “*”, and “*” (hereinafter “each trademark rights of this case”) and registered the transfer of rights. C transferred each of the above trademark rights to L, etc. on April 11, 2013.

5) At the time H, a C director, established the Plaintiff on August 27, 2013 at the request of the Emergency Countermeasure Committee. Around that time, the majority of executives and employees who were in office C transferred their positions to the Plaintiff in the form of new employment. Major facilities for publishing newspapers, such as newspaper company and le-electric, held by C were disposed of by the Korea Asset Management Corporation on July 2013, and the head of Jeju Tax Office closed down the business on October 23, 2013.

6) On September 2013, the Plaintiff entered into a contract to enter into an exclusive license contract (hereinafter “instant contract”) with a down payment of one million won, monthly user fee of KRW 500,000,000 from September 27, 2013 to the time of sale by public auction, etc. of each of the instant trademark rights, and registered the exclusive license of each of the instant trademark rights on December 9, 2013.

7) The Plaintiff filed a registration (registration number K) under the Act on the Promotion of Newspapers, Etc. (hereinafter “Examination Act”). At this time, the period of use of the name “E” was submitted from September 27, 2013 to the expiration date of the instant contract from September 27, 2013. The Plaintiff published a general daily newspaper with the name “E”.

B. Sale and invalidation of each trademark right of this case

1) In the sale procedure conducted by Jeju District Court Decision 2013TTT 4178, employees who were not paid retirement allowances, etc. from C filed an application for compulsory execution against each of the trademark rights of this case, M, the partner of the C representative Director G, purchased each of the trademark rights of this case in KRW 900 million on December 23, 2014, and registered the transfer of rights on January 19, 2015. On July 10, 2015, the exclusive license registered in the name of the Plaintiff as to each of the trademark rights of this case was cancelled. The Intervenor joining the Defendant (hereinafter “the Intervenor”) acquired each of the trademark rights of this case from M on August 6, 2015 and transferred the registration of transfer of rights.

2) A Co., Ltd. filed a petition against C for a trial for invalidation of registration regarding “*” among each trademark of this case, and the Intellectual Property Trial and Appeal Board rendered a trial for invalidation of registration on August 1, 2014. C requested revocation of the said trial decision, but the Patent Court rendered a judgment dismissing the claim for revocation of the said trial decision on January 16, 2015 (2014Heo6285), and the said judgment became final and conclusive by a judgment of the Supreme Court on May 1, 2015.

On August 28, 2015, the Plaintiff filed a petition for a registration invalidation trial against the Intervenor on the trademark "*" and "*" among each trademark right of this case, and the Intellectual Property Tribunal rendered a judgment on invalidation of registration on June 16, 2016.

Although the intervenor sought the revocation of the above trial decision, the claim for the revocation of the trial decision was concluded as a rejection order.

1) The Intervenor was established on August 4, 201 and engaged in various recycling products sales business, etc. on the trade name of “N Co., Ltd.,” but on December 23, 2014, the Intervenor changed the purpose of business by adding newspapers, broadcasting business, etc. on behalf of the existing business, and changed the trade name as at the present time. The Intervenor registered under the Examination Act as “P on the date ofO” (registration number Q).

2) On August 17, 2015, M, as the representative director of the Intervenor, concluded a transfer/acquisition agreement with the content that C would not accept the Intervenor’s obligation without compensation while acquiring the Intervenor’s rights to the age, newspapers, sales and advertisements, etc., including sports/cultural business, rights to sports/cultural business, copyright of the newspapers already issued, Internet news, domain name, and website operation, etc.

3) The Intervenor submitted a letter of consent to the use of the title, which was prepared in the name of the C representative director of the date C, and registered the name of the newspaper from "P to "E" (registration number Q), and published the newspaper from November 16, 2015 to "E".

On November 2, 2015, C sent a letter to the Defendant requesting the cancellation of registration, suspension of issuance, etc. due to the Plaintiff’s unauthorized use of the Plaintiff’s name “E” to the Defendant. On November 9, 2015, the Defendant sent a letter to the Plaintiff on December 23, 2014, stating that the period during which the Plaintiff is entitled to use the Plaintiff’s name is until December 23, 2014 when each of the instant trademark rights was sold to M, requesting the Plaintiff to suspend the use of the name “E”, and if not, it is inevitable to take measures such as cancellation of registration under the Newspapers Act.

4) The Intervenor filed an application for a provisional injunction against infringement of trademark rights against the Plaintiff as Jeju District Court Decision 2015Kahap286, and the above court rendered a provisional injunction against the publication and distribution of newspapers, etc. under the name of “E” on November 30, 2015. In the above provisional injunction case, the Intervenor asserted that the Intervenor succeeded to each of the trademark rights of this case from M on the premise that M had lawfully acquired each of the trademark rights of this case on the premise that M had lawfully acquired each of the trademark rights of this case, but the Plaintiff asserted that the registration of each of the trademark rights of this case was null and void, and thus,

5) Upon the commencement of a dispute with the intervenor, the plaintiff newly registered under the newspaper law (registration number V) with the name of "T" around August 2015, in addition to the existing registration (registration number K), whose name is "E," and separately completed the new registration (registration number X) under the newspaper law (registration number X) with the name "S" on November 2015. Since December 2015, 2015, the plaintiff issued a daily newspaper with the name of "E" under the newspaper law with the name of "E" and published a daily newspaper with the name of "E" in the name of "E".

6) On January 11, 2016, an intervenor filed a report on the succession to the status of C pursuant to Article 14 of the Newspapers Act on the grounds of the instant transfer/acquisition contract, and filed an application for the change of registered matters, such as the publisher, editor, etc. Accordingly, the Intervenor accepted the report on January 20, 2016 and changed the registration (hereinafter “instant disposition” in total, including the acceptance of the report on succession to the status of the business operator and the registration of change of the newspaper business”).

7) The obligees filed a lawsuit seeking revocation of a fraudulent act against the Intervenor as Jeju District Court 2015Gahap11393, and the above court rendered a judgment that revoked the instant transfer/acquisition agreement on November 17, 2016 as it constitutes a fraudulent act (the foregoing judgment became final and conclusive as the withdrawal of the Intervenor’s appeal).

8) Although the Intervenor filed a lawsuit against the Plaintiff as Jeju District Court 2016Gahap2222, the said court accepted the Plaintiff’s claim that “the instant transfer/acquisition agreement constitutes an abuse of the power of representation by C representative Director G and rendered a judgment dismissing the Intervenor’s claim.” The Patent Court, which was the appellate court, appealed on June 21, 2018, also concluded a transfer/acquisition agreement (the instant transfer/acquisition agreement was almost the same as the instant transfer/acquisition agreement; hereinafter referred to as “second transfer/acquisition agreement”) with the Intervenor on May 1, 2017, which was concluded by C as well as the instant transfer/acquisition agreement (the instant transfer/acquisition agreement was almost the same as the instant transfer/acquisition agreement; hereinafter referred to as “second transfer/acquisition agreement”) with the Intervenor and declared that all of the Intervenor’s claims extended to the Intervenor’s appeal were null and void (2017Na1650), and the aforementioned judgment of the Supreme Court became final and conclusive on October 25, 2018.

2. Determination on this safety defense

A. Main safety defense of the defendant and the intervenor

The plaintiff has already acquired or lost the right to use the title "E" as an invalid act, and even if the disposition in this case is invalidated or revoked, the intervenor can issue "E" by the registration number Q newspaper registration, and thus the invalidity or revocation of the disposition in this case does not affect the plaintiff's status, and even if the plaintiff has an interest in the disposition in this case, it is merely an indirect or factual and economic interest, and thus there is no legal interest in seeking cancellation of the disposition in this case. Accordingly, the plaintiff's lawsuit in this case was instituted by a person who has no standing

B. Relevant legal principles

1) In a lawsuit seeking revocation of an administrative disposition, the standing to sue is determined depending on whether it is not the other party to the pertinent disposition, but whether there is a legal interest seeking revocation thereof. The legal interest here refers to a direct and specific interest protected by the law based on the pertinent disposition, and does not include cases where it is merely an indirect or factual interest (see, e.g., Supreme Court Decision 9Du8565, Sept. 28, 2001).

2) A person who intends to publish a newspaper shall register the name of the newspaper (the term "title") with the Mayor/Do Governor having jurisdiction over the seat of the principal office (hereinafter "registration authority"), and a fine for negligence not exceeding twenty million won is imposed on a person who publishes a newspaper without registration (Articles 9(1) and 39(1)1 of the Newspapers Act). Accordingly, the registration of a newspaper conducted by the registration authority constitutes an administrative disposition that enables the lawful publication of a newspaper.

Article 9(5) of the Newspapers Act provides, “No newspaper with the same name as that of a newspaper already registered may be registered: Provided, That this shall not apply where the relevant business entity permits the use of the name of the newspaper.” In the event that the business entity of a newspaper already registered (hereinafter referred to as an “existing business entity”) grants permission for the use of the name of the newspaper, a new newspaper business entity (hereinafter referred to as “new newspaper business entity”) is allowed to register the same name and publish the newspaper. Therefore, a newspaper using a specific name can be issued only for one business entity, thereby protecting not only the freedom of the press of the business entity who has completed a registration of a specific name, but also the freedom of business or property rights of the general readers, and at the same time, preventing misconception and confusion of the name of the new business entity. If an existing business entity permits the use of the name of the newspaper and the registration authority registers a new business entity as a newspaper business entity, the existing business entity cannot issue the newspaper under its name.

In full view of the legal nature of newspaper registration under the Act, and the content and purport of the prohibition of double registration of the same name, the registration of newspaper does not merely include the registration of name, etc. in the public ledger and the publication thereof to the general public, but also allow newspaper publication under a specific name registered with the newspaper business operator. As such, the status of newspaper business operator recognized by the Act on the Examination is distinguishable from that of the "right to use a specific name" itself as a private right.

3) A situation may arise in which an existing enterpriser and a new enterpriser intend to publish an examination in the same name as legally registered one by asserting invalidation, cancellation or termination of â€˜agreement on permission for use of the name' entered into with a new enterpriser, or by asserting termination of the permitted period and disputing a dispute over a new enterpriser. As can be seen, the newspaper law does not directly stipulate the validity of double registration or the administrative measures taken against a new enterpriser who has double-registered registration when two or more newspaper enterprisers intend to issue an examination.

However, in a case where a civil dispute arises between an existing business entity and a new business entity in connection with permission for the use of a name, the registration authority cannot withdraw the registration of a new business entity ex officio on the ground of the civil dispute, and can take administrative measures, such as cancellation of registration or modification of registration, by passing the court's decision on the dispute, and the status of a new business entity under the Act on Examination of New Business Entities shall continue until the

C. Determination

1) In light of the above legal principles, considering the following circumstances revealed by comprehensively taking into account the facts acknowledged above, the instant disposition made unstable status under the newspaper law in which the Plaintiff may issue an examination under the name of “E,” and thus, the Plaintiff may be legally entitled to seek nullification or revocation thereof.

① Upon obtaining permission from C to use the name “E”, the Plaintiff registered under the Review Act of J date, thereby acquiring the status under the newspaper law in which the Plaintiff may lawfully issue the newspaper under the name of “E”.

② At the time of the instant disposition, the Plaintiff and the Intervenor lost the human body and material facilities capable of publishing the newspaper under the name of “E”, and only the Plaintiff and the Intervenor were entitled to publish the newspaper. If the Defendant is registered as a newspaper enterpriser using the name of “F” among the Plaintiff and the Intervenor, the other party becomes unstable in the status under the newspaper law in which the newspaper may be published under the name of “E”.

③ Since both the instant transfer and acquisition agreement and the secondary transfer and acquisition agreement concluded between C and the Intervenor are null and void as seen below, the Intervenor cannot be deemed to have lawfully acquired the right to issue an examination under the name of “E”. This is likewise true when the Defendant rendered the instant disposition.

④ By purchasing each trademark right of this case in the sale procedure for compulsory execution on December 2, 2014, it may be problematic whether the contract of this case is terminated and the period during which the Plaintiff can use the name of “E” expires. However, the Plaintiff continued to publish daily newspapers after December 23, 2014, and suspended the use of “E” in accordance with the provisional disposition order (No. 2015Kahap286 of Jeju District Court Decision 2015) dated November 30, 2015. In the above case raised by the Intervenor and the case prohibiting the use of the trademark of this case (No. 2016Gahap222 of Jeju District Court Decision 2016Gahap222). Accordingly, the Plaintiff did not dispute the period during which M purchased each trademark right of this case, or the Intervenor acquired each of the trademark rights of this case from M, and thus did not dispute the period during which “E” was not terminated.

⑤ On January 20, 2016, the Defendant: (a) deemed the validity of the instant transfer and acquisition contract; (b) deemed that the Intervenor succeeded to the status of C; and (c) rendered the instant disposition to change the issuer, editor, printing, etc. of F newspaper registration; (b) the Intervenor did not accept the Plaintiff’s obligation through the instant transfer and acquisition contract; (c) thus, the Intervenor did not have the obligation to permit the Plaintiff’s use of the Plaintiff’s “E” until the court rendered a decision on whether the instant contract was lawfully terminated. At the time of the instant disposition by the Defendant, at the time of the instant disposition, the Intervenor acquired the Plaintiff’s newspaper business, and the Plaintiff was granted permission for use of the name from C which completed F newspaper and completed the registration under the Newspaper Act (K). The Defendant’s instant disposition recognized that the Intervenor and the Plaintiff were in a position to use the name “E” in the situation of conflict as above, thereby denying the Plaintiff’s status under the Newspaper Act, thereby imposing an administrative fine under Article 39(1)1 of the Newspapers.

2) Meanwhile, as alleged by the Intervenor, even if the Intervenor has already held the examination registration under the name of “E” under the name of “E” following the registration of change, barring special circumstances, such as that the Plaintiff became unable to separately dispute the legitimacy of the registration of change, the invalidity or revocation of the instant disposition does not affect the Plaintiff’s status.

D. Sub-committee

Therefore, the main defense of the defendant and the intervenor is without merit.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The instant transfer/acquisition agreement is based on G’s breach of trust, and thus null and void pursuant to Article 103 of the Civil Act, or constitutes abuse of power of representation. The instant disposition based on the instant transfer/acquisition agreement is also defective.

2) Even if the Intervenor took over the newspaper business lawfully from C, the instant disposition is defective in the following point of view even if the Intervenor took over the newspaper business lawfully.

① The Intervenor used the same name as the Plaintiff. The Intervenor did not obtain the Plaintiff’s consent when applying for registration of modification.

② Although C had already closed its business and did not file a report on closure under the Newspapers Act, the Defendant received the instant disposition that the Intervenor succeeds to the status of C, despite the grounds for ex officio revocation of registered matters.

③ Since the Intervenor had already completed registration under the name of “E”, there is a problem that he/she holds the same name as that of the instant disposition.

3) Therefore, the instant disposition is null and void (main claim), or should be revoked (preliminary claim).

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) Whether the instant transfer/acquisition agreement and the secondary transfer/acquisition agreement are valid

Since the acceptance of a report on succession to the status of a permitting agency following the business transfer and acquisition is based on the premise that there has been a legitimate transfer and acquisition of a business, even if the business transfer and acquisition subject to the acceptance are nonexistent or null and void, such acceptance shall be null and void naturally as it is without validity (see Supreme Court Decision 2005Du3554, Dec. 23, 2005). Thus, first, whether the intervenor lawfully takes over the newspaper business from C, i.e., whether the transfer and acquisition contract of this case and the secondary transfer and acquisition contract are valid or not.

Even if the representative director of a corporation has abused his/her authority within the scope of his/her representative director's right to represent, regardless of the company's profit, for the purpose of pursuing his/her own interest or a third party's profit, the act is effective once of the company's act. However, if the other party to the act knew or could have known the representative director's intention, it shall be null and void against the company (see, e.g., Supreme Court Decision 2005Da3649, Jul

In the case of this case, comprehensively taking account of the aforementioned facts and the evidence evidence Nos. 13 and the purport of the entire pleadings, the transfer/acquisition contract of this case and the second transfer/acquisition contract of this case all together constituted an abuse of authority by the C representative director G for the purpose of promoting his/her own or a third party's interest without a relationship with C's profit, and the intervenor was well aware of such circumstances. Thus, it is reasonable to deem that each transfer/acquisition contract of this case is null and void.

① Although the C representative G was registered as C representative director due to the failure of resignation at the time of the conclusion of the instant transfer/acquisition contract, he/she was convicted of having been convicted by the court due to criminal facts, such as embezzlement of C funds, etc.

② At the time of entering into the transfer and acquisition contract of this case, C did not have any specific type of asset except for the right to publish the newspaper under the name of trademark right and E, or the copyright to the newspaper that was published. However, C Council confirmed the agreement that C transferred the right to publish the newspaper under the name of “E” to the representative of the Emergency Countermeasure Committee, and confirmed the contract that established the exclusive license for the trademark right. The Emergency Countermeasure Committee intended to establish and publish E by excluding G from E management and by establishing a new corporation. Accordingly, C established by the Plaintiff, and C established the exclusive license for each trademark right and E.

③ The representative director G of C and the Intervenor’s representative director M are the form of punishment. Before the Intervenor’s change, the company was entirely unrelated to the publication of Nro newspaper. G changed its trade name at the time when the criminal trial was in progress and changed its purpose to newspaper publishing business, etc.

④ At the time of the instant transfer/acquisition agreement and the secondary transfer/acquisition agreement, C did not have the ability to pay retirement allowances to executives and employees. Nevertheless, G transferred the right to issue an examination to an intervenor free of charge or in return for five million won, under the name of “E, the only property of C on behalf of C.”

⑤ In light of the developments leading up to the conclusion of the second transfer and acquisition contract, C and the Intervenor are deemed to have concluded the second transfer and acquisition contract with almost the same content as the transfer and acquisition contract of this case in order to avoid the validity of the judgment when the court ruling was rendered that the transfer and acquisition contract of this case was null and void as it was based on the abuse of power of representation.

2) Sub-committee

As such, since both the instant transfer and acquisition contract and the secondary transfer and acquisition contract are null and void, it cannot be deemed that the Intervenor lawfully acquired the newspaper business from C pursuant to each of the above contracts. Therefore, even if the Defendant accepted the Intervenor’s report on the succession to the status of the newspaper enterpriser on January 20, 2016, the acceptance of the report is null and void as it does not have any validity, and as a matter of course, the registration of changes in the registered matters, such as the publisher, editor, etc.

Therefore, the plaintiff's primary claim seeking confirmation of invalidity of the disposition of this case is justified.

4. Conclusion

If so, the plaintiff's main claim added by this court prior to the remand is justified, and it is so decided as per Disposition (as long as the main claim is accepted, it shall not be judged).