2019Da224764 Compensation (other than)

A Company A

B A.

Seoul High Court Decision 2016Na2009146 Decided February 14, 2019

July 24, 2019

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Case history

The reasoning of the lower judgment and the evidence duly admitted by the lower court reveal the following facts.

A. The Plaintiff claimed to the Defendant for compensation for damages for simultaneous re-transmission of terrestrial broadcasts with the amount of KRW 100,00,00,000 for the damages incurred therefrom, but based on the “number of subscribers to individual CATV broadcasting business entities (Evidence A26) secured through C during the proceeding at the court of first instance,” the number of subscribers to individual CATV broadcasting business entities (Evidence A266) shall be calculated on the basis of the “number of subscribers to individual CATV broadcasting business entities (Evidence A265), 265, 5, 07 as of the end of 2010, 207, 4, 111, 111, 37, 671, 37, 671, 54, and 162 as of the end of 2011.

12. From December 2015 to December 2015, the purpose of the claim was to seek the payment of damages amounting to KRW 279, 168,00 and damages for delay calculated as the "280 won per policyholder" and to seek the payment of damages amounting to KRW 279, 168, and 00.

B. In accordance with Article 125(2) of the Copyright Act, the court of first instance excluded the amount of damages from 280 won per month of the insured pursuant to Article 125(2) of the same Act, and recognized the amount of damages 179, 963, 735 won per month of the insured pursuant to Article 126 of the same Act and damages for delay. The court estimated the number of the Defendant’s digital HD insured based on the evidence No. 26 of the same Act while setting the number of the above insured, and excluded it from 3% of the insured, by deeming that the person excluded from the settlement, such as free-of-charge, discount goods, and ex officio suspension, constitutes 5% of the insured. In the first instance judgment, both the Plaintiff and the Defendant appealed.

C. On February 18, 2016, the Plaintiff submitted Cheongju District Court Decision 2015Da20473, 2015Gahap21094 (Joint) that the number of the Defendant’s digital broadcasting subscribers at the time of December 31, 2014 is 54,584, and subsequent subscribers are confirmed to be the same. Based on the content, the Plaintiff’s digital broadcasting subscribers at the fourth date of pleading to December 2015 were ratified to be the same as 54,584 monthly number of the Defendant’s digital broadcasting subscribers from December 2011 to December 2015, and submitted 54,584 (number of subscribers in February 280 x 49 months x 49 months x 49 months x 49 months x 544,202, the digital subscriber’s claim for compensation for delay was modified to be included in the digital subscriber’s claim for compensation for delay.

2. The judgment of the court below

The lower court determined that it is reasonable to calculate the Plaintiff’s damages pursuant to Article 125(2) of the Copyright Act as “280 won per month of the insured” including only the remaining digital HD subscribers (hereinafter referred to as “persons subject to settlement”) except for the subscribers who receive discount benefits (including free payment) from among digital HD subscribers, temporary suspension, etc., excluding digital HD subscribers who receive no charge. Furthermore, the number of digital broadcasting subscribers from December 201 to December 201, when determining the number of subscribers subject to settlement, shall be the number of digital broadcasting subscribers from December 201 to December 2015.

31. Ratification of the same number of subscribers at the time as 54,584, the cumulative settlement target is 2,674,616 (54,584 x 49 months). The amount of damages is 748,892,480 won (2,674,616 won cumulative number of subscribers in X 280 per month) and damages for delay are recognized.

3. Judgment of the Supreme Court

A. According to the above, the amount of damages that the Defendant shall pay to the Plaintiff is the amount of damages to be paid to the Plaintiff.

It can be known that the amount is calculated as KRW 280 per month of the insured subject to settlement from December 2015.

B. However, even if the number of the Defendant’s digital broadcasting subscribers at the time of December 31, 2014 is 54,584, the following facts are revealed: (a) according to the evidence No. 26 and evidence No. 55, the number of the Defendant’s digital HD subscribers has been continuously increased from December 2, 201 to December 2015; and (b) the lower court calculated the amount of damages by reflecting the increased number of the Defendant’s digital HD subscribers for the above period. In light of this, it is difficult to conclude that the Defendant’s number of the Defendant’s digital broadcasting subscribers at a given time continues to be the same during the period from December 201 to December 2015.

C. In addition, the number of subscribers to the said digital broadcasting, 54,584 includes not only digitalSD subscribers except for the number of subscribers subject to settlement, but also subscribers who receive discount benefits (including free of charge), temporary suspension, etc., whose charges are not claimed.

D. In such cases, the lower court should calculate the amount of compensation by clarifying whether the number of subscribers to digital broadcasting is several persons from December 2, 2011 to December 2, 2015, and the number of subscribers, other than those who receive discount benefits (including free of charge) from digital broadcasting subscribers, temporary suspension, etc., are several persons, and the remaining number of subscribers, other than those whose fees have not been claimed due to temporary suspension, should be determined.

E. Nevertheless, the lower court confirmed that the number of digital broadcasting subscribers from December 2, 2011 to December 2015 is the same as 54,584 persons each month, and further, did not exclude subscribers who receive not only digitalSD subscribers but also discount benefits (including free payment) due to temporary suspension, etc. from the number of subscribers. In so determining, the lower court erred by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, failing to exhaust all necessary deliberations, etc., which affected the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

4. Conclusion

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of 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 Lee Ki-taik

Justices Kim Jong-il

Justices Park Il-san

Justices Kim Jong-soo