2019 Doz.582748 damages (other than damages)

A Stock Company

Law Firm LLC et al., Counsel for defendant-appellant

Attorney Lee Jin-ok and Lectured

1. B

2. C.

3. D;

Defendant 2 and 3 Attorney Cho Jae-jin, Counsel for the defendant 2 and 3

Defendant 2 and 3’s attorney Lee Ho-ho

November 27, 2020

December 18, 2020

1. The Defendants jointly pay to the Plaintiff 1,00,000,000 won with 12% interest per annum from October 12, 2019 to the date of full payment.

2. The costs of lawsuit are assessed against the Defendants.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Facts of recognition;

A. The Plaintiff is a company that provides online cartoons (hereinafter referred to as “welter”) using the “E” or “F” platform, and is an exclusive issuer for the web titing provided on each of the above platforms.

B. On May 28, 2019, the Defendants were indicted at the Busan District Court on the charge of violating the Copyright Act, which read, “The Defendants: (a) illegally downloaded and distributed the web 4,901 No. 260,785 vehicle from June 10, 2017 to May 3, 2019 without obtaining permission from the copyright holders; (b) arbitrarily downloaded and distributed the Web 4,901, No. 260,785 vehicle to “G” (hereinafter referred to as “G”); and (c) thereby, acquired advertising proceeds, thereby infringing the copyright holder’s property rights for profit. The Busan District Court found Defendant B’s imprisonment with labor for two years and suspended execution for three years; (d) imprisonment with labor for one year and two years; and (e) imprisonment with labor for two years; and (e) one year and six years and three years after the suspended execution for each of the aforementioned charges (hereinafter referred to as “related criminal cases”); and (e) the judgment related to each of the aforementioned criminal charges became final and conclusive.

around January 6, 2017, Defendant B proposed to operate an illegal web site with 0.0 billion won from Defendant C and D, respectively, and received 10.0 million won from each of them, and Defendant B knew 'H’ used mainly through the Chinese shipbuilding site, and caused Defendant B to take exclusive charge of the production of the illegal web site, and around that time set up a basis for the operation of the illegal web site at the time of China. On April 6, 2017, Defendant B opened the domain of “G,” 200 from 0.0 to 200 to 6.0 to 4.0 to 20 to 20 to 20 to 5 to 20 to 20 to 20 to 20 to 20 to 20 to 30 to 20 to 20 to 20 to 20 to 30 to 20 to 20 to 30 to 20 to 20 to 30 to 30 to 20 to 20.

Rodd's work without permission on the following website, and reproduction, distribution, and acquisition of advertising revenue so that they can be seen as non-intervenors, thereby infringing on copyright holders' property rights for profit-making purposes.

C. In the relevant criminal judgment, the web claim that the Defendants were found to have reproduced without permission and distributed through G is included in the web claim (attached Form 1), which the Plaintiff provided via the “E” platform (attached Form 1), and the Plaintiff’s “F” platform (attached Form 2), 5,582, 413, 26,618, total sum of 413, 70, 413, 26,618, which the Plaintiff provided (hereinafter referred to as “the web claim offered by the Plaintiff”) (attached Form 1 and 2).

[Ground of recognition] Facts without dispute, Gap's entries in Gap's 3 through 5, 11 through 13, 15, 17 through 19 (each number is included; hereinafter the same shall apply), and the purport of the whole pleadings

2. Summary of the plaintiff's assertion

A. The Defendants infringed the Plaintiff’s author’s property right (right of reproduction and distribution) by reproducing without permission of the Plaintiff, who is the exclusive publication right, without permission, the copyright holder, and thereby infringing upon the Plaintiff’s property right (right of reproduction and distribution). Therefore, pursuant to Article 125 of the Copyright Act, the Defendants are liable for compensating the Plaintiff for

B. Selectively, the Defendants: (a) illegally reproduced the web NN, which is the outcome of the Plaintiff’s investment and efforts, and then used the Plaintiff’s outcomes without permission in a manner contrary to fair commercial practices and competition order by putting them on G, which constitutes an unfair competition act under Article 2 subparag. 1(k) of the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter “Unfair Competition Prevention Act”); and (b) the Defendants are liable for compensating the Plaintiff for damages arising therefrom pursuant to Article 5 of the Unfair Competition Prevention Act.

3. Determination

(a) Occurrence of liability for damages;

1) According to the above facts of recognition, the Defendants were liable to compensate the Plaintiff for damages caused by the reproduction of the Plaintiff’s author’s property right (right of reproduction and distribution) by duplicating the instant web 413 Part 26,618 without the Plaintiff’s permission.

2) As to this, Defendant C did not participate in G, and the money received from Defendant B after the oil in 2018 was received as the name of living expenses or the profit from the money lent to Defendant B, and does not receive the distribution of G operational revenue. Defendant D (hereinafter “Defendant C and D”) submitted the web mon from Defendant B at the request of Defendant B from April 2017 to June 2017, it was true that Defendant B did not participate thereafter, but did not receive the payment of the entire amount of damages suffered by the Plaintiff, and it is unreasonable to impose liability for damages on the said Defendants, on the part of the Plaintiff.

Unless there are special circumstances where it is difficult to adopt a judgment of facts in a criminal trial in light of other evidence submitted in a civil trial, it cannot be acknowledged that the facts against the judgment of facts in a criminal trial, even though it is not bound by the fact-finding of the criminal trial, have been convicted of the same facts (see, e.g., Supreme Court Decision 2007Da69148, 69155, Feb. 14, 2008).

Furthermore, the joint tort liability does not individually seek damages from each individual act of the perpetrator, but to pursue the liability for the joint tort jointly committed by the perpetrator. As such, the scope of liability for damages from joint tort is determined by comprehensively evaluating all the acts of the tortfeasor in relation to the victim, and the amount of compensation shall be borne by each tortfeasor for the whole amount of the compensation. Even if the extent of processing of the tort by one tortfeasor is minor compared to other tortfeasors, damage shall be borne by one tortfeasor.

In relation to a person, the scope of the perpetrator’s liability cannot be limited to part of the amount of compensation determined as above (see, e.g., Supreme Court Decision 2000Da13900, Sept. 29, 2000).

In light of the above legal principles, in light of the health unit and the contents of the relevant criminal judgment as to the instant case, the said Defendants: (a) between Defendant B, etc., the role in the production and server of Defendant B, the role in managing Defendant C, the role in managing Defendant C, and the role in managing G and then divide it into G and then again; and (b) agreed to distribute if Defendant B and the said Defendants acquired the profit from the distribution of G. Defendant B and the said Defendants jointly with the said Defendants, on the following grounds: (a) it was acknowledged that they received the Web from June 10, 2017 to May 3, 2019 without permission and received the Web 4,901,260,785 volume, including the instant Web, from May 10, 2017 to receive it, and then copied and distributed it to G; and (b) it is insufficient to view the Plaintiff’s act of jointly taking part in the Plaintiff’s intellectual property right and the said Defendants’ act as an infringement.

Therefore, we cannot accept the above defendants' assertion.

B. Scope of liability for damages

1) The plaintiff's assertion

Pursuant to Article 125(2) of the Copyright Act, the Defendants are obligated to pay KRW 18,886,336,00,000, which is a profit that the Plaintiff may gain when the Plaintiff jointly provided the instant web claim to the Plaintiff via the “E” or “F” platform (i.e., the number of times the G users perused the instant web claim 94,431,680, total of KRW 200,000, which the Plaintiff seeks as a part of the Plaintiff’s 1,000 won.

2) Whether Article 125(2) of the Copyright Act is applied

Although there is no dispute between the parties that the user fee of Plaintiff Web 200 per time is 200 won, it is not sufficient to recognize that G users’ perusal of the web of this case was 94,431,680 times in total, even if the respective entries in Gap evidence Nos. 3, 11 through 13, 15, and 16 were combined, and there is no other evidence to acknowledge it. Therefore, it is difficult to calculate the amount of damages pursuant to Article 125(2) of the Copyright Act.

3) Determination of damages pursuant to Article 126 of the Copyright Act

In Article 126 of the Copyright Act, "the court is recognized as having occurred the damage, but it is difficult to calculate the amount of damage pursuant to Article 125, taking into account the purpose of pleading and the result

It is stipulated as "......." The plaintiff suffered loss due to the defendants' infringement of author's property right (right of reproduction and right of distribution). The evidence submitted by the plaintiff alone does not know "amount that can be ordinarily received by the plaintiff's exercise of copyright" under Article 125 (2) of the Copyright Act. Thus, it is reasonable to view this case as falling under the case where it is difficult to calculate the amount of loss pursuant to Article 125 (2) of the Copyright Act even though it is recognized that the damage occurred, and it is difficult to calculate the amount of loss due to copyright infringement under

In light of the above-mentioned facts and the overall purport of the arguments and the following facts and circumstances, it is reasonable to determine the amount of damages of the Plaintiff due to the Defendants’ infringement of author’s property rights (right of reproduction and distribution) as KRW 1,00,000,000.

① 한국콘텐츠진흥원에서 2018년 발간한 만화·웹툰 불법유통 실태조사결과에 의하면, G과 같이 웹툰 불법 유통 사이트를 이용하는 이용자들의 웹툰 열람 형태는 다음과 같이 3가지로 구분할 수 있다. 첫째는, 가 신규작품 중심으로 몰아서 열람하는 형태로서 이 경우 이용자들은 '초기화면 ⇒ 검색(또는 작품 목록 조회) → 해당 회차 열람'의 과정으로 웹툰을 열람한다. 다음으로, 나 구독하던 작품의 최신회차를 찾아 열람하는 형태로서 이 경우 이용자들은 '초기화면 ⇒ 검색(또는 작품목록 조회) → 해당 작품 열람 ² 작품목록 확인 → 작품 열람'의 과정으로 웹툰을 열람한다. 마지막으로, 다 구독하는 작품을 즐겨찾기 해 두고 열람하는 형태로서 이 경우 이용자들은 '작품목록 확인 → 작품 열람'의 과정으로 웹툰을 열람한다. 이용자들의 열람 방식에 따라 이용자가 웹툰 1회차를 열람하기 위해 거쳐 가는 웹페이지의 수가 달라지는데, 그 중 가장 많은 페이지를 거쳐 가게 되는 위 나의 방식을 따른다고 가정할 때,2) 이용자들은 웹툰 1회차를 열람하기 위해 평균적으로 3.54개의 페이지를 거쳐 간다(갑 제16호증 86~88쪽 참조).

Considering that G 20, from May 2017 to May 2019, G 200 KRW 2,349,950,00, and that if it is divided into 3.54, it is reasonable to view that the Plaintiff’s 20th time of using the 20th time of using the 20th time of using the 20th time of using the 20th time of using the 20th time of using the 20th time of using the 3th time of using the 20th time of using the 3th time of using the 5th time of using the 5th time of using the 5th time of using the 6th time of using the 5th time of using the 20th time of using the 5th time of using the 5th time of using the 5th time of using the 20th time of using the 5th time of using the 5th time of using the 6th time of the 2nd time of using the 5th time of the 6th time of the 2nd internet.

④ Defendant B, operating a large number of illegal sites including G from May 2018 to April 2019, attracting sales advertisements from the website operators, such as illegal sports gambling, and obtained criminal proceeds of KRW 1,050,130,000 in total as advertising expenses (see evidence 13 subparag. 7).

Therefore, the Defendants are jointly obligated to pay the Plaintiff damages amounting to KRW 1,00,000,000 for damages and damages for delay calculated at the rate of 12% per annum from December 10, 2019 to the date following the delivery of the copy of the complaint in this case, as sought by the Plaintiff, as the result of May 2019, which is the termination date of the tort day.

4. Conclusion

Therefore, the plaintiff's claim against the defendants of this case is justified, and it is so decided as per Disposition with the assent of all.

Judge of the presiding judge;

Judges Han Han-so

Judges Seo-won

1) Although the Plaintiff explicitly stated that the relationship between the cause of the claim is the cause of the selective claim, the claim amount by each cause of the claim shall not be separately determined.

If there is no calculated by the court, it shall be selected as a selective claim and judged.

2) Of the above three methods, the number of presumed perusals is calculated by the most appropriate number, as seen later, as seen in the following cases. As a result, the Defendants are calculated by the most appropriate number.

applicable to the most favorable calculation method for the Corporation.

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