[1] In a case where an execution officer merely announced the fact of issuing a provisional disposition ordering an omission, and the debtor violates the order of omission, whether the crime of nullifying an indication on official duty is established under Article 140(1) of the Criminal Act (negative)

[2] The scope of infringement prohibited by the prohibition of infringement on a utility model right

[1] The crime of invalidation of an indication in the line of duty under Article 140(1) of the Criminal Act is established by impairing or concealing, or impairing the utility of, a public official’s specific compulsory disposition, such as sealing, seizing movable property, possession of real estate, etc., with respect to his/her duties. Therefore, if the execution officer publicly announced that a provisional disposition ordering the respondent to omit was issued by the court, and did not perform a specific enforcement act such as sealing or moving to his/her own possession, etc., the respondent merely violates the above provisional disposition’s omission order does not constitute an act that undermines the utility of an indication in the line of duty.

[2] An infringement prohibited in a provisional injunction against infringement of a utility model right should be specifically specified. Such provisional injunction is only effective against a specified infringement, but does not naturally affect the scope of the right or protection of the utility model right claimed by the applicant as the preserved right.

[1] Article 140(1) of the Criminal Act / [2] Article 30 of the Utility Model Act, Article 126 of the Patent Act

Defendant

Defendant

Seoul Central District Court Decision 2006No2 delivered on February 16, 2006

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.

The crime of invalidation of indication in the line of duty under Article 140(1) of the Criminal Act is established by impairing or concealing or impairing the utility of a public official by any other means, such as sealing, seizing movable property, possession of real estate, etc. in connection with his/her duties, so if the execution officer publicly announced that a provisional disposition ordering an omission was issued by the court to the respondent, and did not perform specific enforcement acts such as moving the sealing or the goods to his/her own possession, it cannot be deemed that the respondent merely violates the order of omission of the above provisional disposition and does not constitute an act impairing the utility of an indication in the line of duty. Meanwhile, the infringement prohibited in the provisional disposition prohibiting infringement of the utility model right should be specifically specified. Such provisional disposition is only effective, but does not naturally affect the scope of the right of utility model right or the scope of protection claimed by the applicant as the preserved right.

Examining the reasoning of the judgment below and the record, the non-indicted 1 (hereinafter only referred to as the "appellant") shall not produce or transfer the banner installation stand (hereinafter referred to as the "products of this case") or make an offer to carry out the provisional disposition of this case with the name of the device on January 10, 2003, using the utility model right (registration number No. 203054, hereinafter referred to as the "registration device of this case") as the right to claim prohibition and prevention of infringement against the defendant as the right to be preserved, and (1) the respondent shall not separately obtain the provisional disposition of this case from the Seoul District Court 202Kahap3594, and (2) the non-indicted 1 (the respondent shall not obtain the provisional disposition of this case from his own main office, branch office, factory, warehouse, etc.) to install or transfer the banner installation stand (the non-indicted 1 shall be subject to the provisional disposition of this case to which the plaintiff shall have obtained the provisional disposition of this case's publication of the purport of the provisional disposition of this case's inserting.

If the facts are as above, it cannot be deemed that the defendant committed an act of infringing on the purpose of the provisional disposition of this case, and in light of the fact that the execution officer merely announced the omission order prohibiting the manufacture, etc. of the product of this case, and did not perform a specific enforcement act, it cannot be deemed that the defendant did not merely violate the omission order imposed by the provisional disposition of this case, thereby impairing the utility of an indication in the line of duty

Nevertheless, the court below, on the premise that the defendant's owner's product falls within the scope of the right in the registered complaint of this case and the defendant violated the duty of omission by selling the above product, and held that the product constitutes an act that impairs the utility of the compulsory disposition that the public official performed in relation to his duties, by misunderstanding the legal principles on the subject of the crime of invalidation of indication in the line of duty and the subject of the prohibition of provisional disposition prohibiting infringement of the utility model right, which affected the conclusion of the judgment.

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)