According to an analysis of a total of 270 judgments acknowledging the damages due to copyright infringement over the past four years from November 2017 to November 2021, the court applied Article 126 of the Copyright Act, accounting for about 85%, The lowest acknowledgment rate of about 80%. In particular, when the Plaintiff insisted on Article 125 (2) of the Copyright Act, the acknowledgment rate when the court accepted it and applied Article 125 (2) of the Copyright Act was the highest at 83%, while the acknowledgment rate when the court rejected it and applied Article 126 of the Copyright Act was the lowest. This may mean that if the Plaintiff asserts Article 125 (2) of the Copyright Act, the acknowledgment rate may vary depending on whether the court applies Article 125 (2) of the Copyright Act or Article 126. In addition, the fact that the court recently applied Article 126 of the Copyright Act to 85% of the judgments acknowledging infringement of copyright means that too many trials are calculated at the discretion of Article 126 of the Copyright Act. The fact that the court's acknowledgment rate is significantly lower than when Article 125 (1) or 125 (2) of the Copyright Act was applied means that the legislative purpose of Article 126 of the Copyright Act (to prevent a void in copyright protection by stipulating that damages for copyright infringement can be calculated at the discretion of judges if it is difficult to prove the amount of damage even under Article 125 of the Copyright Act) isn’t being realized properly, and in the end, it can mean that copyright protection through trial is not sufficient. And considering the influence of the judgment, it can mean that economic valuation of copyright in the copyright market can also be lowered. Therefore, this paper analyzed the judgement of “if it is difficult to calculate the amount of damage under Article 125” and then suggested analytical·legislative improvement methods when the court applying Article 126 of the Copyright Act. In order to ensure the predictability of whether it will be calculated under Article 125 (2) of the Copyright Act or under Article 126 of the Copyright Act, it is necessary to establish interpretation standards to ensure predictability of when Article 125(2) will be applied and Article 126 will be applied, and not only the decreasing factors but also the increasing factors needs to be considered more actively. In order to strengthen the objectivity of calculating the amount of damage under Article 126 of the Copyright Act, it is necessary to reflect in detail the factors based on the value evaluation method of copyright and the value evaluation result of the value evaluation model of the Korean Content Assessment Center. Legislatively, it is necessary to consider introducing the provisions of Article 114-4 of the Japanese Copyright Act for accurate and objective calculation of damages and the provisions of supporting professional members of the Japanese Copyright Act in order to effectively utilize Article 129-2 of the Copyright Act.

요약
I. 서론
II. 저작재산권 침해를 이유로 한 인용판결의분석
    1. 분석대상 판결
    2. 법원의 각 법 조항 적용비율분석
    3. 각 법 조항 인용율 분석
    4. 종합분석 및 문제점
III. 제125조의 규정에 따른 손해액 산정이어려운 경우
    1. 원고가 저작권법 제125조 제1항 침해자이익을 주장한 경우
    2. 원고가 저작권법 제125조 제2항을 주장한경우
    3. 유사한 컴퓨터 프로그램인데 판시가 달랐던경우
    4. 검토 및 소결
IV. 제126조에 의한 손해액 산정 시 고려사항
    1. 분석사항
    2. 원고가 저작권법 제125조 제1항을 주장한경우
    3. 원고가 저작권법 제125조 제2항을 주장한경우
    4. 손해액 산정경로에 대한 구체적 설시가없었던 경우
    5. 유사한 컴퓨터 프로그램 사안이나 판시가달랐던 경우
    6. 소결
V. 저작권법 제126조의 해석론적⋅입법론적개선방안
    1. 제125조의 규정에 따른 손해액을 산정하기어려운 경우의 기준 보완
    2. 참작사항들의 예측가능성 제고
    3. 증액 요소들의 적극적 고려
    4. 무형자산 평가기준에 의한 저작권 가치평가산정의 참작
    5. 한국콘텐츠진흥원의 가치평가모델의 참작
    6. 손해액 산정 근거조항의 명확한 설시
    7. 저작권법 제126조 참작사항의 구체적 설시
    8. 계산 감정인규정과 감정인 설명의무규정의도입
    9. 저작권법 제129조의2의 활용과 전문위원지원규정의 도입
VI. 결론
ABSTRACT

• 손수정(디케이엘파트너스 법률사무소 파트너 변호사) | Su-Jeong Son