컴퓨터 프로그램의 물성에 관한 재검토 (Whether a computer program is a thing in legal sense or not?)

서지정보

· 발행기관 : 한국재산법학회
· 수록지 정보 : 재산법연구 / 26권 / 3호 / 293 ~ 323페이지
· 저자명 : 오병철

초록

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 concrete institutions in Korea Civil Code. However the digital goods has became the necessaries so that we should try to make a legal structure for digital goods as a third value in our civil law system.
It is inappropriate to presume that software is a thing in order to apply sales contract rule to digital information transaction by analogy. It is proper that we should formulate a new regulation for digital information transaction and make a provisions in Korean Civil Code than that. Since the Napoleon Code various contract types has occurred, they has been ruled by provisions of Civil Code legislated newly on all such occasions. For example German Civil Code was amended in 2004 that it accepted new type of contracts such as consumer loan contract, money transfer contract, payment contract and giro contract. Therefore I suggest that we should make a provision for end-user license contract of digital information in Korean Civil Code at the earliest possible moment.
IV. The right of a computer program purchaser Even though computer program belongs to a thing in legal sense, a computer program purchaser can not hold ownership of computer program but the right of end-using which a right holder can install, execute and maintain permanently a computer program as an end-user for the following reasons: (1) The right of a computer program purchaser lacks the wholeness of ownership. He keeps a right to run a computer program and is not allowed to reproduce, rent and alternate a computer program. It is all nonsense that he holds a ownership of computer program despite of restriction. Even a computer program copyright holder has "intellectual property" as quasi-real right, not ownership of computer program in the traditional civil law theory. Therefore because of limitation of kinds of real-right doctrine, the right of a computer program purchaser is not a kind of real-right to use computer program but non-exclusive right under end-user license agreement. (2) Korean Civil Code adopts "just one real-right on each thing doctrine" as a principle of property law that only one ownership must be admitted on each thing. If not only a computer program copyright holder but also a computer program purchaser nominally has ownership of computer program, a computer program purchaser should hold a same right in comparison with him. It occurs conflict with "just one real-right on each thing doctrine". However the right of a program purchaser differs from the right of a copyright holder having ownership of intellectual property. Therefore a computer program purchaser can't get ownership of a computer program. (3) Because a thing is unique in the world, a right of a claim for a return is deemed a effective measure to protect ownership. But a computer program is consisted of digital, the return of computer program which means a main measure of ownership protection is illogical. (4) Allowing that a computer program purchaser does not have ownership of computer program, he can sell a computer program at secondhand under article 20 Korean Copyright Act and execute it permanently by contractual terms or an accepted theory. Therefore it is not the only measure left for him to give a right to use perpetually computer program that he holds a ownership of it.


V. conclusion The debate that whether the computer program is a thing or nor in legal sense is very similar to controversies that whether electricity is a thing or nor in legal sense and whether trade over the telephone is a distance trade or not in 1900s in Germany. At that time germen legislator chose the policy to make a new provision for appearance of new scientific product. Nowaday digital goods such as a computer program and digital contents is a unfamiliar with the traditional civil law system which stick to conservative idea. For example recent 'i-phone phenomenon' in Korea, considering the importance and weight of digital goods will be grown up day by day, It is a best way to properly amend Korean Civil Code and formulate new rules for regulating of digital information transactions. Don't put new wine into old bottle!

영어초록

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 concrete institutions in Korea Civil Code. However the digital goods has became the necessaries so that we should try to make a legal structure for digital goods as a third value in our civil law system.
It is inappropriate to presume that software is a thing in order to apply sales contract rule to digital information transaction by analogy. It is proper that we should formulate a new regulation for digital information transaction and make a provisions in Korean Civil Code than that. Since the Napoleon Code various contract types has occurred, they has been ruled by provisions of Civil Code legislated newly on all such occasions. For example German Civil Code was amended in 2004 that it accepted new type of contracts such as consumer loan contract, money transfer contract, payment contract and giro contract. Therefore I suggest that we should make a provision for end-user license contract of digital information in Korean Civil Code at the earliest possible moment.
IV. The right of a computer program purchaser Even though computer program belongs to a thing in legal sense, a computer program purchaser can not hold ownership of computer program but the right of end-using which a right holder can install, execute and maintain permanently a computer program as an end-user for the following reasons: (1) The right of a computer program purchaser lacks the wholeness of ownership. He keeps a right to run a computer program and is not allowed to reproduce, rent and alternate a computer program. It is all nonsense that he holds a ownership of computer program despite of restriction. Even a computer program copyright holder has "intellectual property" as quasi-real right, not ownership of computer program in the traditional civil law theory. Therefore because of limitation of kinds of real-right doctrine, the right of a computer program purchaser is not a kind of real-right to use computer program but non-exclusive right under end-user license agreement. (2) Korean Civil Code adopts "just one real-right on each thing doctrine" as a principle of property law that only one ownership must be admitted on each thing. If not only a computer program copyright holder but also a computer program purchaser nominally has ownership of computer program, a computer program purchaser should hold a same right in comparison with him. It occurs conflict with "just one real-right on each thing doctrine". However the right of a program purchaser differs from the right of a copyright holder having ownership of intellectual property. Therefore a computer program purchaser can't get ownership of a computer program. (3) Because a thing is unique in the world, a right of a claim for a return is deemed a effective measure to protect ownership. But a computer program is consisted of digital, the return of computer program which means a main measure of ownership protection is illogical. (4) Allowing that a computer program purchaser does not have ownership of computer program, he can sell a computer program at secondhand under article 20 Korean Copyright Act and execute it permanently by contractual terms or an accepted theory. Therefore it is not the only measure left for him to give a right to use perpetually computer program that he holds a ownership of it.


V. conclusion The debate that whether the computer program is a thing or nor in legal sense is very similar to controversies that whether electricity is a thing or nor in legal sense and whether trade over the telephone is a distance trade or not in 1900s in Germany. At that time germen legislator chose the policy to make a new provision for appearance of new scientific product. Nowaday digital goods such as a computer program and digital contents is a unfamiliar with the traditional civil law system which stick to conservative idea. For example recent 'i-phone phenomenon' in Korea, considering the importance and weight of digital goods will be grown up day by day, It is a best way to properly amend Korean Civil Code and formulate new rules for regulating of digital information transactions. Don't put new wine into old bottle!

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