프로그램저작권 침해에 대한 친고죄 규정의 당위성

A Justification of Regulations on Offense Subject to Complaint for Infringement of Program Copyright

Under the social environments where information and communication industry has been developed rapidly along with the advancement of informationalization, people have not simply thought of intellectual copyright as individual product or pure private property, but people have started to recognize it as a kind of public property that would affect the development of relevant industries or the growth of national economy along with the augmentation of economic efficacy. Therefore, there have been many discussions on the necessity of maintenance of protecting intellectual copyright by an offense subject to complaint. There is an opinion that the offense subject to complaint should be abolished and converted into the offense that can be prosecuted without the complaint of copyright owners, but the offenders cannot be penalized against the intention of copyright owners. It signified that copyright would not be individual product or private property any longer in current informationalization society, but one would emphasize the public interest and individuals or copyright owners should not control the right of arraignment any more. In the meantime, the recognition that the use of illegal programs belonged to the crime has not been settled yet and a relief by damage compensations was not sufficient, and it would be necessary to have the method of a relief of damage compensations by the mutual consent among the parties concerned. In addition, the opinion that the offense subject to complaint should be abolished entirely is based on the situation that judicial organizations can be controlled by the plaintiff in a way that the malicious plaintiff who wants to use the plaintiff as a method of psychological oppression against the defendant and the plaintiff has better positions. In this aspect, the offense subject to complaint can eventually bring an unequal legal action to the defendant. However, as shown in the reformed copyright act or Korea-US FTA agreement, it seems that the offense subject to complaint gradually becomes an offense subject to non-complaint for a certain scope. There should be judicial reforms considering the specific features of the copyrighted programs different from general literary works. The programs have formed a variety of price so that it would be difficult to establish an en bloc standard for a certain scope and it would also be a factor that would impair the development of software industry.