저작자허위표시공표죄의 보호법익과 공표 중 발행의 의미 ― 일명 표지갈이 사건(대법원 2018. 1. 24. 선고 2017도18230)을 중심으로 ―

Abstract

In case false name of author is expressed on literary work of original author, crime against Subparagraph 1 of Paragraph 1 from Article 137 of the Copyright Act (“the Subparagraph”) is established. The relevant judgment is the legal precedent that applied the article on so called cover replacement case, and especially the issue was whether the meaning of publication out of legal text shall be understood as copy or distribution (or), or copy and distribution (and). In case of cover replacement case, as the original author had consented to false expression of author’s name, it is necessary to confirm the scope of crime establishment by confirming the legal interest of the crime against the Subparagraph 1, before interpreting crime. In this regard, this paper demonstrated that the legal interest of the crime against the Subparagraph shall be the social interest as the confidence granted by the general society to the literary work, and confirmed that this crime can be established notwithstanding consent from original author. Meanwhile, the publication during announcement as the act of this crime is stated as copy · distribution in the judicial provision, and the judicial precedent interpreted the meaning of the dot ( · ) in between as ‘copy and distribution’. Provided that, the Supreme Court presented that the dot ( · ) in between can be interpreted as “and” in the perspectives of literary interpretation. This interpretation criticized the logics of the Supreme Court based on the sample use of The National Institute of the Korean Language, and confirmed that this was an error in legislation procedure. Also, based on the legislation historical · purposive interpretation on this crime, this interpretation confirmed that the meaning of the dot ( · ) in between is not the issue between ‘and and or’, but the issue of ‘and then’ as the matter of order of incident of behaviors. Furthermore from comparative law perspectives, this interpretation analyzed the case of using dot ( · ) in between in Criminal Law and especially verified that dot ( · ) in between is used differently from uses in Korean language in case of crime against Article 347-2 of the Criminal Law.