The case holding that a CATV broadcasting business operator's act of broadcasting the home shopping advertising broadcasting of a program provider without approval from the Korea Broadcasting Commission and receiving the transmission fees does not constitute a violation of Article 105 subparagraph 3 or Article 9 (5) of the Broadcasting Act.

The case holding that under the current Broadcasting Act, the act of a CATV broadcasting business operator’s programming and broadcasting in his own wire broadcast without the approval of the Korea Broadcasting Commission cannot be deemed as an act included in the elements of a program providing business without the approval of Article 105 subparag. 3 and Article 9(5) of the Broadcasting Act, and the mere fact that a broadcasting business operator provided a program of a program providing business operator who failed to meet the requirements of the Broadcasting Act and received a certain amount of transmission fees cannot be deemed as an act of a program providing business operator, or that there was a functional control over a program of a program providing business operator, it cannot be punished as a co-principal of

Article 2, Article 9(1), (2), (5), and Article 105 subparag. 3 of the Broadcasting Act

[Plaintiff-Appellant] Plaintiff 2003Na3982 delivered on October 10, 2003 (Gong2003Ha, 2216)

Defendant 1 and two others

Defendants

Kim Jong-sik

Attorney Park Si-hwan

Seoul District Court Decision 2003Da364, 2334 Delivered on August 22, 2003

The judgment of the court below is reversed.

Defendants are not guilty.

1. Summary of the Defendants’ appeal

A. misunderstanding of legal principles

In a case where a program provider commits a violation of the Broadcasting Act by running a business without the approval of the Korea Broadcasting Commission while engaging in specialized programming of product introduction and sales, it is essential to provide channels and broadcast the programs produced by the said program provider by a terrestrial broadcasting business operator, a CATV broadcasting business operator, or a satellite broadcasting business operator who has entered into the said program use contract for the said program. As such, there is a requisite co-offender in the lecture between the said program provider and the said broadcasting business operator who provides the channels without approval, and there is no separate provision for punishing the necessary co-offender, and there is no separate provision for punishing the Defendants as a co-principal in the necessary co-principal relation. However, the court below erred by misapprehending the legal principles that punish the Defendants as a co-principal for the other party's crime committed in the requisite co-principal relation.

B. The assertion of unfair sentencing

The sentence of the lower court against the Defendants is too unreasonable.

2. Determination:

A. Summary of the facts charged in this case and the judgment of the court below

Defendant 1 is the representative director of the Gwangju Cable Co., Ltd., and Defendant 2 is the representative director of the Gwangju Cable Co., Ltd., and Defendant 3 is the representative director of the Yangcheon Cable Co., Ltd., and Defendant 3 is the representative director of the Yangcheon Cable Co., Ltd., the above representative director, from February 3, 2001 to Nov. 3, 2001 to March 2002, Defendant 1 found the defendants guilty of the above facts charged by taking into full account the following facts charged: (a) The Home Shopping Broadcasting Co., Ltd., Ltd., The Home Shopping Broadcasting Co., Ltd., the Home Shopping Co., Ltd., Ltd., the Home Shopping Co., Ltd. and the Satellite Transmission Co., Ltd., the Home Shopping Broadcasting Co., Ltd., the Home Shopping Co., Ltd., and receiving advertising fees from the above World Co., Ltd., in collusion with the representative director of the Korea Broadcasting Commission, and (b) the program providing business engaged in specialized in product introduction and sale

B. The judgment of this Court

(1) Therefore, according to the evidence of this case, the defendants were or had been the representative director of each of the above composite cable broadcasting businesses, each of the above composite cable broadcasting businesses (However, the two thousand cable cables were changed from November 28, 2002 to the cablenet cable broadcasting companies) was authorized by the Korea Broadcasting Commission and the Minister of Information and Communication as prescribed by the Broadcasting Act. Co-defendant 1, 2, 3, and 4 of the judgment below were conspired from April 16, 2001 to December 31, 202. However, the above online broadcasting companies were engaged in the above composite cable broadcasting business from 10 to 200, and the defendants were to obtain permission from the above composite cable broadcasting companies and the above composite cable broadcasting companies from 10 to 200, and the defendants were to obtain permission from each of the above composite cable broadcasting companies and the above composite cable broadcasting companies with the order to use the above composite cable broadcasting facilities and the order to use the cable broadcasting companies and the above products from the Korea Broadcasting Commission.

(2) However, under the current Broadcasting Act, broadcasting business conducted by a CATV broadcasting business operator and a program provider is divided into the contents of the business [see Article 2 subparag. 2(b) and (d) of the Broadcasting Act], and the requirements for permission, registration, or approval for lawful implementation are also different (see Article 9(2) and (5) of the Broadcasting Act). At the same time, where a broadcasting business is operated without permission, registration, or approval, each provision shall be punished (see Article 105 subparag. 3 of the Broadcasting Act). In full view of the forms and contents of the above provisions, it cannot be deemed that the act of the Defendants, the representative of a CATV broadcasting business operator, by forming and broadcasting a program of a program provider that was not approved, is included in the elements for establishing a program providing business without approval under Articles 105 subparag. 3 and 9(5) of the Broadcasting Act.

In addition, the facts charged in the instant case where the Defendants conspired with the representatives of satellite broadcasting service providers and satellite broadcasting service providers engaged in specialized programming on the introduction and sale of products without obtaining permission or approval, and there is no special circumstance that the Defendants or the Defendants invested in the said program provider or their cable broadcasting service providers, or intended to distribute profits therefrom. In this case, it cannot be deemed that the Defendants conspired with the acts of program providers or satellite broadcasting service providers, or that there was functional control over the functional act of program providers solely on the ground that the Defendants or the Defendants’ cable broadcasting service providers did not meet the necessary requirements under the Broadcasting Act and received a certain amount of transmission fees.

Furthermore, a program providing business is a business using the channel by concluding an exclusive use contract with a CATV broadcasting business entity or satellite broadcasting business entity for the whole or a part of a specific channel (see Article 2 (d) of the Broadcasting Act). In light of the concept of the above program providing business entity, there is a need for other broadcasting business entities, such as a terrestrial broadcasting business entity, CATV broadcasting business entity, and satellite broadcasting business entity, to broadcast a program produced and programmed by itself, and it is naturally anticipated that the above terrestrial broadcasting business entity, a CATV broadcasting business entity, and a satellite broadcasting business entity will broadcast a program of a program providing its own facilities and channels. As such, if a program providing business entity commits a crime in violation of the Broadcasting Act by running a program without the approval of the program providing business entity, it is necessary to take corrective measures (Article 9), imposition of penalty surcharges (Article 19), etc. under the Broadcasting Act against the above unlawful program providing business entity, but in light of the above provisions, it does not seem to have been separately provided for in the penal provisions on the participation of the program providing business entity.

(3) Therefore, the Defendants’ act does not constitute a violation of Article 105 subparag. 3 and Article 9(5) of the Broadcasting Act, and thus, the facts charged in this case constitute a case where the Defendants do not commit a crime, and thus the Defendants should be acquitted, notwithstanding the fact that the court below found the Defendants guilty, it is deemed that the Defendants committed an illegal act, and therefore, the appeal by the Defendants

3. Conclusion

Therefore, the judgment of the court below shall be reversed in accordance with Article 364(6) of the Criminal Procedure Act, and the judgment shall be rendered again as follows.

The summary of the facts charged of this case is the same as that of the above 2.A., and the defendant's case is not a crime as stated in the preceding reversal reasons. Thus, the defendants are acquitted under the former part of Article 325 of the Criminal Procedure Act.

Judges Lee Jae-hwan (Presiding Judge)