저작재산권침해죄에 있어 형법해석론의 적용과 한계-공동저작자 일인에 의한 공동저작물의 허락없는 이용행위(대법원 2014. 12. 11. 선고 2012도16066판결)를 중심으로-

Abstract

Korean court, regarding the behavior by one of co-authors using joint work without consent from other co-author, while acknowledging violation of exercise method on Copyright pursuant to paragraph 1, article 48 of Copyright Act, denied establishment of crime on copyright infringement pursuant to paragraph 1, article 136 of the same Act. Generally in determination on property crime applying the criminal law, the principle was established that joint ownership and joint occupancy are ownership and occupancy by others. Hence in case of said issue, establishment of property crime is acknowledged. By the way, the judgement denied establishment of crime, notwithstanding the real right property of copyright as exclusive governance right. The purpose of this interpretation is to seek the eligible point of harmonious interpretation between Copyright Act and the criminal law rather than simply basing on the difference between legal territory. This interpretation commented that the conclusion in the judgment was derived due to the conflict with use of joint work by co-authors as value of Copyright Act, sympathizing the structural problems in criminal punishment on the behavior of infringing copyright in priority consideration of the property of the copyright , substance of the crime of copyright infringement and the fact that every person engaged in creative works are exposed to potential involvement in crime of copyright infringement due to technological development in information society. Though the judgment was based on the collision point between protection of copyright value and fair use of copyrighted works, this interpretation derived the conclusion which differs from such judgment by verifying the illegality based on the interpretation of the behaviors of defendants in the case based the provisions in the Copyright Act. In the course of deriving such solution, this interpretation verified that the co-work in joint work has properties similar to partnership-ownership out of joint ownership relationship on property right. Furthermore this interpretation suggested that strict judicial assessment is required on schematized conclusion of joint ownership and joint occupancy in criminal law theory refecting transactional situation of further diversity of property rights and complexity in property relationships.