화가의 친작사기와 사기죄의 성부 - 2018도13696 판결을 소재로 -

Abstract

The co-creation of artworks is a public fact. However, in art transactions, the existence of fraud becomes an issue if the co-creation is a fact that is the basis for judgment to mislead the other party into performing property disposition or is a basic fact of the transaction. The standard for determining authorship here is the social convention of the general public with ordinary judgment in art transactions. In other words, if the transaction is unacceptable contrary to the conventional wisdom of the general public with reasonable discretion, depending on the other party, the transaction details, and the transaction practice, it is the basis for a duty of disclosure that recognizes a special trust relationship. It cannot be said that the existence of a fiduciary relationship is generally unnecessary or unimportant information, and its importance must be "judged on a case-by-case basis" for each individual transaction. The realm of art is one that the courts should respect. This is because art, which is characterized by creativity and amorphousness, cannot be judged uniformly by the standards of the law. However, Art does not mean that the criminal law should unconditionally refrain from it, nor does it mean that the question of authorship in a fraud case must be a direct violation of copyright law. In the ‘Korean Poker Painter Case’, considering the nominee's usual behavior and relationship with the substitute painter, the painterly nature of the artwork, the size and scale of the work, the difficulty of the work, the degree of the master painter's instruction and participation, and the overall contribution, it is judged that the author's act was outside the acceptable limits in light of sound common sense and legal sentiment in our society, as it was an act of creative contribution by externally expressing human thoughts or feelings. Therefore, as a (co-)copyright holder, it is possible to recognize deceptive behavior by engaging in transactions such as buying and selling artworks without disclosing the existence of a substitute work. Even if it is a art, if it becomes an object of legal activity, it is incorporated from the realm of art to the realm of norms. Therefore, it is not desirable to separate the author and the copyright holder, which are two sides of the same coin, under the expression of judicial restraint, and bypass the author's judgment.