Defendant

Defendant

The number of movement (prosecution) and Kim index (trial)

Attorney Yu Sung-sung

Daejeon District Court Decision 2014Gohap345 Decided September 15, 2015

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. Legal principles

In the case of a building other than a building under the relevant provisions of the Copyright Act, even if a multi-level model is made in accordance with the design drawing, it does not constitute “duplicing” under the Copyright Act. Therefore, in the case of this case where a victim’s work (hereinafter “the design of this case”) other than a building existing only in drawings, such as “unfolding space” and “ves for the future” (hereinafter “the design of this case”) is made into a three-dimensional sculpture of “Blue” and “blue” (hereinafter “the design of this case”), it is not included in “duplicing” under the Copyright Act.

B. Error of mistake

The instant design was either taken over from the victim or used with the consent of the victim.

C. Unreasonable sentencing

The sentence of the court below (the fine of five million won) is too unreasonable.

2. Judgment on misapprehension of legal principles

Article 4(1)4 of the Copyright Act defines the work of applied art as a kind of work of art, and Article 2 Subparag. 15 of the same Act defines the work of applied art as “the work of art that can be reproduced in the same shape as that of the goods, including design, and whose originality may be recognized separately from the relevant goods.”

In this case, according to the evidence duly adopted and examined by the court below, the design of this case is a creative production of a computer program containing his idea or a certain subject in order to subscribe to an environmental creation in an apartment complex. The design of this case is a creative production of the computer program in detail, and if any person intends to present the design of this case, it appears that he can produce the same or similar sculpture as the sculpture in which the design of this case is embodied. In fact, the defendant is recognized to have manufactured the sculpture of this case in accordance with the design of this case. According to this, it is reasonable to view that the design of this case is a kind of applied art that can be converted into a shape of the goods per se, and it constitutes an applied art work that can recognize its originality by distinguishing it from the article used (in this case, the article in question has shapes or shapes).

Furthermore, Article 2 Subparag. 22 of the same Act provides that “the reproduction” refers to fixing or remaking tangible objects temporarily or permanently by means of printing, photographing, copying, recording, or visual recording or other means, and in the case of a building, it includes the act of the Defendant’s production of the sculpture in accordance with the architectural model or design drawings. Even if the design of this case previously existed, the act of producing the sculpture of this case constitutes a reproduction as defined in the above provision (the applied art is naturally planned under the above definition) as a reproduction of the historical sculpture in accordance with the design of this case, even though the design of this case was not previously made, it does not constitute a reproduction as defined in the Copyright Act. However, Article 4(1)5 of the Copyright Act provides that the production of the sculpture of this case, which is not a building, does not constitute a functional work as its functional nature, and does not include the act of the Defendant’s reproduction of the architectural work in accordance with the latter part of the Copyright Act, but also the act of the latter part of the architectural design of this case does not constitute “the reproduction of the architectural work.”

3. Judgment on the assertion of mistake of facts

According to the evidence duly admitted and examined by the court below, it can be sufficiently recognized that the defendant has produced the sculpture of this case by taking over the design of this case from the victim or without obtaining permission, and only an investigation report (156 pages of the evidence confirmation, non-indicted 156 of the evidence record) or confirmation document (68 pages of the evidence record) containing unclear contents is insufficient to reverse it. The judgment of the court below is justified, and there is no error as pointed out by the defendant.

4. Judgment on the assertion of unfair sentencing

There is no record of punishment exceeding a fine, and there is no record of the same crime, nor there is no extenuating circumstance in favor of the defendant such as the relationship with the victim.

However, considering the defendant's age, character and behavior, environment, circumstances after the crime, and circumstances after the crime, the sentence of the court below is too unreasonable because it cannot be seen as being against the defendant, and the damage has not been recovered, and there are other circumstances unfavorable to the defendant.

5. Conclusion

Since the appeal by the defendant is groundless, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Lee Sung-sung (Presiding Judge)