[1] The meaning of “Habitual Crimes” and the number of crimes in cases where a person habitually commits the same kind of crime repeatedly and there is no provision punishing habitual offenders as a separate type of crime (=in principle, substantive concurrent crimes) and the number of crimes in cases where a crime under Article 136(1) of the Copyright Act is committed habitually several times due to infringement of author’s property right (=in principle, substantive concurrent crimes)

[2] The number of crimes of infringement on author's property rights to several copyrighted works (=in principle, substantive concurrent crimes) and the case where a single comprehensive crime is established

[3] In a case where Defendants, who operate an Internet file sharing site, were indicted on charges of aiding and abetting infringement of author's property rights by allowing members to download illegal digital contents even though they were aware that the digital contents subject to author's property rights are being distributed illegally, the case holding that the court below erred by misapprehending the legal principles as to the number of crimes committed in violation of the Copyright Act, on the ground that the total crime of multiple copyright holders with respect to multiple copyrighted works distributed through the above site constitutes a single comprehensive crime, and that the judgment below held that the crime

[1] A habitual offender refers to a type of crime subject to aggravated punishment where a person committing an act that constitutes a basic element of crime is deemed to have the nature of an offender, namely, habitual crime, which is deemed to have been committed repeatedly. Thus, even if a habitual offender repeatedly committed the same kind of crime, unless there is a provision punishing habitual offender for a separate crime, each crime shall be punished as a separate crime in principle. The Copyright Act provides for a crime under Article 136(1) due to the infringement of author's property right in the main sentence of Article 140 of the Copyright Act as an offense subject to victim's complaint. Article 140 proviso subparagraph 1 of the same Act provides that where the above crime is committed habitually for profit-making, a prosecution may be instituted even without filing a complaint. However, there is no provision that habitually punished the crime under Article 136(1) of the Copyright Act. Accordingly, even if a habitual offender committed a crime under Article 136(1) over several occasions, it cannot be viewed as a single comprehensive crime subject to aggravated punishment, this does not correspond to legal principles.

[2] Since the infringement of author’s property right differs from the legal interests infringed upon each work even if the copyright holder is the same, the infringement of each work constitutes, in principle, separate crimes. However, in a case where the infringement of the same work as a single and continuous criminal committed repeatedly for a certain period, it may be deemed that one crime has been committed by combining the following acts.

[3] In a case where Defendants, who run two web storage sites, were indicted for aiding and abetting the infringement of author's property rights by allowing multiple members to run illegal digital content up to a number of times with knowledge that digital content subject to author's property rights has been distributed illegally, the case holding that even if the Defendants acknowledged "Habitualness for profit-making purposes" against the Defendants, such aiding and abetting acts only serve as the basis for punishing the Defendants even without filing a complaint, and as a matter of principle are concurrent crimes, each aiding and abetting act of the Defendants is in a relationship between each other. However, even though each aiding and abetting act of multiple copyright holders with respect to the same copyrighted work distributed through the above web site is only one comprehensive crime, the lower court erred in the misapprehension of legal principles as to the number of offenses in violation of the Copyright Act.

[1] Article 37 of the Criminal Act, Articles 136 (1) and 140 of the Copyright Act / [2] Article 37 of the Criminal Act, Articles 136 (1) and 140 of the Copyright Act / [3] Articles 32 (1) and 37 of the Criminal Act, Article 136 (1) of the Copyright Act, Article 140 proviso subparagraph 1, and Article 141 of the Copyright Act

[1] Supreme Court en banc Decision 2001Do3206 Decided September 16, 2004 (Gong2004Ha, 1684) / [2] Supreme Court Decision 99Do4940 Decided January 21, 200 (Gong2000Sang, 530) Supreme Court Decision 2009Do10759 Decided July 14, 201 (Gong201Ha, 169)

Defendant 1 and one other

Prosecutor

Seoul Central District Court Decision 2011No1964 Decided August 24, 2011

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

1. The term "Habitual Crimes" refers to the types of crimes subject to aggravated punishment in a case where a person who committed an act that constitutes a certain basic constituent element is deemed to have the nature of an offender, namely, habitual crime, which is deemed to be committed repeatedly. Thus, even if a person who habitually committed the same kind of crime repeatedly, unless there is a provision punishing habitual crimes as a separate criminal, each crime shall be punished as concurrent crimes, in principle, unless there is a provision punishing habitual crimes as a separate criminal.

Article 140 (1) of the Copyright Act provides that a crime under Article 136 (1) due to the infringement of author's property right shall be subject to prosecution. Article 140 (1) 1 of the same Act provides that a public prosecution may be instituted without filing a complaint in the event that the crime is habitually committed for profit. However, there is no provision that a case where the crime under Article 136 (1) is habitually committed is punished. Accordingly, even if the crime under Article 136 (1) of the Copyright Act is committed several times, it is based on the expression of the legal provision, and it is not a habitual offender who is committed as a single crime. It is also consistent with the legal structure that it conforms to the expression of the legal provision, and that it is a provision that punishs a habitual offender.

In addition, since the infringement of author’s property right differs from the legal interests infringed upon each work even if the copyright holder is the same, each work constitutes separate crimes in principle. However, in a case where the infringement of the same work as a single and continuous criminal intent has been repeatedly committed for a certain period, it may be deemed that one crime has been committed by combining the two cases (see, e.g., Supreme Court Decisions 9Do4940, Jan. 21, 200; 2009Do10759, Jul. 14, 2011).

2. The summary of the facts charged of this case is as follows: (a) Defendant 1 operated ○○○, a web site of the Internet file sharing website from April 10, 2010 to September 21, 2010; and (b) operated △△△△△△△△△, a same kind of website from April 23, 2010 to August 17, 2010; (c) even though being aware that digital contents subject to author’s property right are being distributed illegally through the above file sharing website, Defendant 1, a representative director, operated the same kind of digital contents, and △△△△△△△, an unlawful act of aiding and abetting Defendant 1, a representative director, thereby aiding and abetting members to download the digital contents up to a number of cases, and thereby aiding and abetting the infringement of author’s property right. (d) Defendant 2, a representative director, was subject to joint penal provisions by aiding and abetting a violation of the Copyright Act.

In light of the aforementioned legal principles and the provisions of the Copyright Act, even if the defendants' "Habitualness for profit" is recognized, it is only the basis for punishing the defendants without filing a complaint. Therefore, each aiding and abetting act of the defendants is in principle a concurrent crime. However, each aiding and abetting act of several times of infringement of the same work is likely to constitute a single crime, including aiding and abetting act of the same work.

Nevertheless, under the premise that the proviso of Article 140 (1) 1 of the Copyright Act provides for a separate constituent element as a habitual offender for a crime under Article 136 (1) of the same Act, the lower court determined that the Defendants’ entire crime of this case against the majority of copyright holders’ multiple copyrighted works distributed through the above two sites was a single comprehensive crime. In addition, even if the crime of this case was not a habitual offender, the lower court held that the entire crime of this case was committed under a single and continuous criminal intent, and thus, constitutes a single comprehensive crime. However, the lower court did not err by misapprehending the legal doctrine on the number of crimes committed in violation of the Copyright Act, thereby adversely affecting the conclusion of the judgment, and the allegation in the grounds of appeal assigning this error is with merit.

3. It is so decided as per Disposition by the assent of all participating Justices on the bench, and the case is remanded to the court below for a new trial and determination.

Justices Kim Nung-hwan (Presiding Justice)