저작권침해죄의 고소권자에 관한 소견

Abstract

We analyzed the reason infringement of copyright(author’s property right) is regulated as offenses subject to personal complaint, compared to the theory of South Korea, Japan, Germany, but it is difficult to find the satisfactory answer. It may be partly convinced that legally protected goods is the private right, related with personal rights, and the effect of infringement is minor, but loophole of each theory exists as described above. In the end, the theoretical background of offenses subject to personal complaint should be found in the historical basis and the intend of a legislator. A legislator thinks that in order to fulfill best the purpose of the copyright law, prosecution for infringement of copyright should be dependent on the will of holder of copyright who was damaged by the infringement. Likewise, when the holder of copyright permits the publication right or exclusive right of publication to an exclusive user, only if the criminal prosecution is relied on the will of the user, the purpose of the copyright law can be realized best. Also, in the case of non-exclusive license of copyright, if it is at least the type of exclusive use with the special contract between parties, the licensee(exclusive user) having no exclusive right like publication right can claim the injunction for infringement of copyright instead of licensor under the circumstance that the licensee’s right is actually infringed by illegal use of the third party. In this respect, the licensee(exclusive user) is included as a person who can claim an injunction like holder of copyright(licensor), thus, it is desirable that the licensee(exclusive user) has the right of complaint. The interpretation that exclusive licensee has the right of complaint is in accord with § 223 Korea Criminal Procedure Act. According to the provision, the victim of crime can have the right of complaint. In case of exclusive license, licensor has the responsibility not to use the copyright works and not to license the same copyright works to the third party. Thus, the licensee has a legal position and is expected to use exclusively the work. If the third party uses illegally the work, the exclusive legal position is infringed, and the licensee is seen as the victim of crime. Also, though the licensee is not a victim of crime, he is entitled to file a complaint instead of the victim of crime according to § 236 Korea Criminal Procedure Act. As described above, it is same as the opinion and conclusion of Japan Supreme court which has the similar copyright Act system like Korea. This is in accord with legislative tendency in domestic and foreign that the infringement of copyright is gradually regarded as offenses not subject to personal complaint and the recent argument to abolish offenses subject to personal complaint in terms of legal policy.