컴퓨터 프로그램의 물성에 관한 재검토

Whether a computer program is a thing in legal sense or not?

I. Introduction Koran Civil Code has a provision, article 98 that a thing is defined as material objects and manageable natural energy such as electricity. It has been a controversy whether computer program is a thing from a legal point of view or not. The major theory in Korea denied computer program is a thing in legal sense, but a new theory that computer program belongs to a thing is formulated in the latest paper for doctor degree. The new theory is firmly influenced by german legal theory and decision of the germen supreme court that regarded a computer program as a thing with intend to apply provisions for sales contract to a defect of standard computer program. Especially the germen supreme court has decided not only software contained tangible medium but also computer program downloaded through wireless computer network is a thing in legal sense in ASP case. However there are opposite opinions which software is not a thing but information goods. This paper tries to examine thoroughly a new theory with a critical eye. II. Computer program as a Information goods Computer program is never a thing for the following reasons: (1) The nature of computer program is inconsistent with the definition of a thing in the article 98, Korean Civil Code. It regulates a thing in legal sense consisted a tangible goods and manageable natural energy such as electricity. For computer program is not tangible goods but also a kind of natural energy, it is not a thing according to the regal wording. Notwithstanding decision of the germen supreme court, software is not a thing under Korean Civil Code. (2) The assumed premise of definition of a thing is exclusive domination by owner. The replication makes it impossible for a provider to exclusively dominate computer program. After a computer program provider sales a computer program to a end-user, he still has held ownership of it. In the traditional regal sense, there is no thing which a seller can keep his ownership after selling. These non-excludability and non-rivalry of is a typical nature of information goods. (3) If computer program is a thing, that is in disharmony with a property law in Korean Civil Code. Provided that a computer program is one thing and its storage is another, ownerships of them is belonged to a computer program copyright holder as an owner of a main thing on the principle of fusion under article 257 Korean Civil Code. Actually a computer program purchaser buys it from a storekeeper, in that case a storekeeper who does not hold ownership of a computer program may be a unauthorized person. It is totally impractical to think that a storekeeper has ownership of not only a storage for software but also intangible computer program. (4) To harmonize with another applicable laws, a computer program is not treated as a thing. If computer program is a thing, a reproduction without permission(piracy) may not be dealt with an infringement of copyright but larceny. That is in disagreement with decision of Korean Supreme Court. III. Computer program as Digitalized labor Computer program composed by digital is artificial. While an artificial thing means "objectification(Versachlichung) of labor", an computer program is "digitalized labor" on the other hand. The labor can not be separated from a person except for objectification in industrial society. In information society the labor can be separable from a person by digitalizing. The "digitalized labor" is unfamiliar with traditional legal system. We need a new legal paradigm for information society which constitutes a thing, a labor and an information(digitalized labor) as a third value. The Roman Law system is based on traditional dualism of the credit as a labor not be separated from a person and real right as a labor separated from a person. Because intellectual property is not dominant trading subject until now, quasi-real right has remained in a nominal terminology that can not be developed to the co