[Re-post] Seoul Central District Court dismisses both of SME’s injunctions against JYJ

Seoul Central District Court dismisses both of SME’s injunctions against JYJ

by VITALSIGN on February 17, 2011

On February 17th, the Seoul Central District Court dismissed both lawsuits filed by SM Entertainment against JYJ.

To recap, SM Entertainment filed an objection on October 27th, 2009, claiming that the Seoul Central District Court’s order to prevent them from interfering with JYJ’s individual activities was illegal.

The court rejected SM’s injunction objection application by stating, “The exclusive contract between SM and JYJ forces the celebrity to become subordinate to the agency without any discretion.  JYJ has no option but to follow SM’s actions due to the subordinate rank they are forced under in the power of SM.  A long-term subordinate contract cannot be justified by the risks the agency took in investments, as well as international advancements.”

They continued,  “Aside from the long-term contract terms, SM’s ability to supervise and direct every move made by JYJ, as well as the clause claiming that JYJ must repay for losses only emphasizes the subordinate positions of JYJ in the contract, so the injunction is invalid.”

Regarding the second injunction filed by SM Entertainment, asking the court to suspend JYJ’s contract with CJES Entertainment, the court replied by saying that the injunction is invalid since SM Entertainment was ordered on October 27th, 2009 that they were to not interfere with JYJ’s individual activities, and their injunction was in breach of that order.

Baek Chang Ju, CEO of CJES Entertainment, commented, “We consider it a victory of truth and hope that their activities are no longer hindered by forced accusations of double contracts.  We will be working hard to show only the best side of JYJ to the public. I would like to thank the JYJ members and the staff for consistently battling a tiring fight against Goliath.”

In conclusion, the exclusive contract between SM and JYJ is invalid, and JYJ’s individual activities are legal.

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[UPDATE]

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Representatives of SM Entertainment stated in the aftermath of the ruling, “The legal battle between SM and JYJ is not yet over. This court decision is merely on the injunctions, this does not mean that the exclusive contract between SM and JYJ is invalid. The original lawsuit is still ongoing, and the date of pleading will be sometime mid-March. Through the original lawsuit, the truth will be investigated, and we will be working to make sure that their contracts are still valid.”

Source: Newsen, E Daily, World Journal, Sports Chosun via Daum

Article translated and taken from Allkpop

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[NEWS] Courts Dismiss All SM Injunctions & “Legally Guarantee JYJ’s Independent Activities”

The Seoul District Courts has dismissed all formal objections against JYJ’s injunction as well as the exclusive contract suspension injunction filed by SM Entertainment against JYJ’s Kim Jaejoong, Kim Junsu and Park Yoochun.
On the 17th, the Courts made it known that they have dismissed all claims filed by SM Entertainment, which is the agency’s formal objection against JYJ’s injunction as well as its exclusive contract suspension injunction.

This means that the Courts have emphasized their decision that the contract signed between the members of JYJ and SM is invalid and that the members’ independent activities are guaranteed. They have also publicized that SM Entertainment cannot interfere with JYJ’s activities in the entertainment activities on the claim that their contract with the agency is still valid.

The Courts laid down the verdict that SM Entertainment’s formal objection is invalid on the premise that

▲the exclusive contract in question can be categorized as a submissive contract as it does not give the celebrity the freedom of choice and instead forces him to follow the orders of the entertainment agency,

▲the members of JYJ could do nothing but follow SM’s orders as they were placed in an inadequate position compared to SM in terms of bargaining power,

▲the exclusive contract’s extreme long-term subordinate nature cannot be justified by pretexts including the decrease of investment risks and ensuring a stable entrance into foreign markets,

▲other than the long-term nature of this exclusive contract, clauses including that which gives SM Entertainment direct superintendency over JYJ’s every move as well as that which calls for excessive compensation for a breach of contract strengthen the submissive nature of this contract and place the members of JYJ in an unilaterally disadvantageous position.

Regarding the injunction filed by SM to suspend the exclusive contract signed between the members of JYJ and C-JeS Entertainment, the Courts dismissed the injunction on the grounds that,

▲as long as the verdict made on October, 2009, which includes the decision that SM must not interfere with JYJ’s independent activities in the entertainment industry, is valid, SM’s request to suspend the validity of the business commission contract signed between the members of JYJ and C-JeS Entertainment is not allowed as it goes completely against the previously stated verdict,

▲and stressed that SM cannot exert the direct superintendency, given to them by their exclusive contract, over JYJ’s activities in the entertainment industry as of now.

Source: [osen+DNBN]
Translation credits: jeeelim5@tohosomnia.net
Shared by: tohosomnia.net
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[Op-ed] A Cosmetic(s) Discourse, Part III: Psychological, Social and Moral Retardation by 3000 Years

A Cosmetic(s) Discourse, Part III:

Psychological, Social and Moral Retardation by 3000 Years

In parts I and II we deconstructed and dismissed both the form and content of the cosmetic discourse’s central argument—that the involvement of the three members in a side cosmetics business necessarily caused the breakup of Dong Bang Shin Ki. At this point, it appears even the discourse and those that champion it, are aware of their own logical weaknesses and that appealing to an empty morality based on “brand value” can only go so far. Thus, at this stage, the discourse attempts to introduce another moral sub-argument. To its credit, it’s an argument that manages to elevate the discourse to the third and (once in a while) fourth stages of Kohler’s Stages of Moral Development, but also retards humanity by about 3000 years.

A Warped Sense of Justice

The cosmetics discourse finds reason to brand the members of JYJ as traitors in the concept of ‘contract as promise.’ It essentially promotes the idea that a contract represents a sacred promise, the fulfilment of which guarantees a stable and functioning society; thus, fulfilling contracts is synonymous with honour, responsibility and justice. In this manner, the discourse is designed to appeal to those who have advanced to the third and possibly fourth levels of moral development, also known as the “conventional level”—to those who believe it is imperative for everyone to conform to their social roles in order to maintain a functioning society, to those who attribute a significant amount of importance to authority and rules, and to those who believe that “if one person violates a law, perhaps everyone would” and thus consider “obligation”, “duty”, “rules” and “authority” to be Wheel of Fortune jackpot buzz-words.[i]

Appealing to such notions, the cosmetics discourse pushes the argument that any and all contracts must be fulfilled to the letter. Under no circumstances must a signed contract be breached by any of the parties involved. In order to get this point across, the discourse simultaneously exaggerates the moral value of ‘honour’, ‘responsibility’ and ‘fulfilling contracts’ and belittles the content of Dong Bang Shin Ki’s contract itself.

In a way, the discourse has no choice but to resort to this rhetoric and strategy because neither Korean law nor international law is on its side. In fact, one would be hard-pressed to find anywhere on this planet a legal system that endorses the idea that all contracts must be fulfilled no matter what. If anything, the law frowns upon the notion by introducing the principle of unconscionability into contract law[ii]. When the terms of a contract are clearly unfair to one party or goes against more fundamental norms and principles of social justice, a contract is deemed unconscionable and the court can decide to render it null and void. This is the basis for the Seoul District Court’s judgment when it granted the JYJ trio the injunction to suspend the effects of their contract with SM: the court’s preliminary opinion is that the contract is unconscionable on the grounds of Korean Civil Code Article 103 (anti-social/anti-law acts)[iii]. The principle of unconscionability of contracts is consistent all the way up to the level of international law, where a treaty or international agreement is automatically rendered null and void if it is found to violate or cause another party to violate jus cogens[iv]—prohibition against genocide, torture, slavery, etc.—or erga omnes[v] [vi]— most internationally recognised human rights fall into this category—norms.

Therefore, the legal system of the 21^st century and the value system that supports it do not credit the notion that one must fulfil a contract, even a clearly unfair one, at all costs as “honour” or “responsibility” but as foolishness and reckless endangerment. If anything, the insistence that a contract must be fulfilled no matter what is often indicative of an international crime at hand, as practically every case of human trafficking and the modern sex slave trade demonstrate. If it were indeed true that all contracts must be fulfilled, then the contracts issued by human traffickers would also be considered valid and victims of trafficking would be among the most honourable people on earth.

[Op-ed] A Cosmetic(s) Discourse, Part II: On Legal Entities and the Pursuit of Happiness

A Cosmetic(s) Discourse, Part II:

Yo’ Mama is More Relevant

In the first part of this series, we deconstructed the very cosmetic cosmetics discourse. Uncovering its argument structure, we determined that it suffered logical flaws in its attempt to prove that it was the members of JYJ and their involvement in a cosmetics business that caused the current 3:2 split of TVXQ. However, although we have challenged its argument process, we have yet to directly challenge the argument itself. In this second part of the series on the cosmetics discourse, I will start pointing out major problems with the assertion itself that Jaejoong, Junsu and Yoochun’s involvement as individual investors in Crebeau caused the current crisis of Dong Bang Shin Ki.

Real Person v. Fake Person

Proponents of the cosmetics discourse, including SM Entertainment, like to assert that the members of JYJ left SM to pursue their investment in the cosmetics business, and because the trio left SM they also left Dong Bang Shin Ki, consequently breaking up the group. The underlying assumption here is that SM and Dong Bang Shin Ki are one and the same; that since SM “created” Dong Bang Shin Ki, the group cannot exist outside of SM.

However, SM Entertainment and TVXQ are two separate and different legal entities, having different rights and obligations in conformity to their different and very separate legal statuses. The members of TVXQ, as flesh-and-blood human beings, are natural persons whereas SM Entertainment, as a non-human corporation, is regarded as an artificial (in more ways than one) person or as having legal personality[i]. Already the assertion pushed by the cosmetics discourse that JYJ leaving SM broke up Dong Bang Shin Ki is on shaky ground. SM Entertainment and Dong Bang Shin Ki are not one and the same; it is perfectly possible for the group to exist and pursue activities as TVXQ outside of SM. In fact, one of SM’s former idol groups, Shinhwa, is doing just that: the group is no longer under or with SM but continue to function as Shinhwa, even with their members in different management companies. Recently, another idol group, SS501, also split into different management companies but continue to exist together as SS501; this doctrine of legal personality clearly differentiates their management companies from the idol group. Consequently, it is also possible for any or all members of Dong Bang Shin Ki to leave SM Entertainment but continue to be part of Dong Bang Shin Ki. In fact, this is what the members of JYJ wanted[ii] [iii]. The problem, therefore, could only lie in SM’s obstinate refusal. In this context, there is no problem with JYJ’s assertion that they left SM, not TVXQ, and that they are still TVXQ members.

This fundamental legal construct of natural v. artificial personality is also present in the reasoning behind the rejection (twice) of SM’s application to trademark the name Dong Bang Shin Ki in traditional Chinese characters. As patent lawyer Jeon Sojeong points out, “What Dong Bang Shin Ki’s management company SM Entertainment failed to recognise is that the very act on their part of filing an application for trademark registration for ‘Dong Bang Shin Ki’ underscored the fact that Dong Bang Shin Ki and SM Entertainment are clearly two separate legal entities…”[iv]

Further conversations with a colleague in a reputable law school in Korea and another in a reputable law school in the United States revealed that SM can never claim complete and irreversible ownership of Dong Bang Shin Ki in any form. The most that SM can claim are limited rights to use the name of the group for promotional and related business activities; this is essentially what registration of a trademark is. Korean patent law makes it clear that when a trademark is connected in any way with a famous natural person even this right is not absolute. The more the general public associates a registered name with the famous person to whom it refers instead of the management company that registered the name, the final say lies with that person. In other words, at this point, if the members of JYJ object to the way SM is using any variation of the name ‘Dong Bang Shin Ki’ or their stage names there’s a high chance of them winning against SM. If the trio ever do raise objections, it’ll be clear for all to see that TVXQ and SM are separate and independent entities, with or without a cosmetics business in the picture.

[News] JYJ’s Foreign Fans Launch Petition in 10 Languages, “Protect JYJ’s Rights”

JYJ’s Foreign Fans Launch Petition in 10 Languages, “Protect JYJ’s Rights”

Starnews, Feb. 14, 2011

[Money Today Starnews Reporter Park Youngwoong]

 

Foreign fans are mobilising for JYJ, who are in the midst of a lawsuit with SM Entertainment over their exclusive [contract].

As of the 14^th, foreign fans of JYJ are continuing a petition that aims to protect and get recognised JYJ’s rights.

Foreign fans have opened and continue to monitor a page dedicated to the petition, which has been translated into 10 languages, including English, Chinese, Japanese, and French. Korean fans are not permitted to participate.

Since this petition directly addresses [JYJ’s] lawsuit on the validity of their contract, it will be submitted to the court. Fans have concluded that this lawsuit is causing JYJ’s inability to appear on music programmes as well as other constraints in their supposedly free entertainment activities.

Previously JYJ fans launched an ad campaign on January 27^th with messages supporting JYJ. As a result, 120 buses in Seoul and other important cities (Gwangju, Daejeon, Daegu, Busan) are carrying the advertisement, “[JYJ] we cheer on your youth” for a month.

Source: Starnews via Nate

Translated by: Jimmie of TheJYJFiles

[News] SM’s Complaint Against Crebeau DISMISSED

SM’s Complaint Against Crebeau DISMISSED

 

*click on the document to view it in its original size

View the original documents as a slideshow HERE

Source: Seoul Central District Attorney’s Office via TVXQ DC-gall

Translated by: Inklette of DNBN

Shared by: TheJYJFiles

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[Announcement] Signature Check and Petition Extension

Signature Check and Petition Extension

Some Petition signers have expressed concerns that they did not receive a pop-up message indicating that their signature went through after they signed. We want to address your concernment and have come up with a solution for signers to verify if their signatures were counted.

To check if your signature has been entered, please use Internet Explorer to visit the Petition page and click at the top of the page where it says “Check whether your signature went through!”

You will be taken to a page where you’ll be asked to enter the EXACT name and email address that you’ve used to sign the Petition:

We are extending the Petition deadline from February 15^th to February 25^th in order to accommodate this new feature. Those who find that their signature did not go through will have the opportunity to sign again at the Petition page or email their signature to JYJpetition@gmail.com

*Please note that if you’ve emailed us your signature, processing takes a few days so please do not be alarmed if the system does not immediately state that your signature has been entered.

Extending the Petition period will also serve two other important purposes:

(1)    To properly promote the Petition in the translated languages that were added after the February 3^rd start date. Many fans were eager to spread the Petition in their own countries and have volunteered to translate the Petition into Turkish, Portuguese and Indonesian. The Turkish and Portuguese Petition were only posted very recently and the Indonesian Petition has yet to be posted (we will announce its availability shortly, please stay tuned). It would only be fair that those who wish to sign the Petition in the aforementioned languages are given an adequate time period to do so.

(2)    To allow a decent time frame for those without PC or Smartphones to email in their signatures.

[Op-ed] A Cosmetic(s) Discourse, Part I: The Eighth Cardinal Sin = Breaking up a Boyband

A Cosmetic(s) Discourse, Part I:

The Eighth Cardinal Sin = Breaking up a Boyband

Introduction

Ever since the beginning of the lawsuit, and perhaps before as well, SM Entertainment has insisted that the sole reason Dong Bang Shin Ki members Kim Jaejoong, Kim Junsu and Park Yoochun were suing the company was because of their involvement, in the capacity of investors, in an obscure cosmetics company. The three members filed a lawsuit, SM claimed, in order to pursue their ‘greed for wealth’ hand-in-hand with this cosmetics company. As readers are by now aware, not long after, all sorts of rumours elaborating on, and catering to, SM’s interpretation of events has spread through the Internet in a manner a speck too organised for it to have been mere coincidence. A group of anti-JYJ fans who came to be known collectively as the “Hotel Girls” forcefully insisted that these rumours were “facts” by also providing photos, video-clips, links to websites (that look like they’ve been put together after a lark in the park and a night class in web-design at the local community college) and other “evidence” allegedly corroborating their claims. By now we all know where that ended up in the case of Korea…it involved a lot of kow-towing, officially recorded confessions and blubbering apologies on the part of at least 15 Hotel Girls.

The purpose of this article and those that follow is not to definitively dispel nor confirm these “facts”—or labour through separating fact from fiction—about the cosmetics business and JYJ’s involvement in the business. There are better sites and Internet platforms run by more experienced and knowledgeable people doing just that. In any case, what I find more disturbing is the discourse that buttresses the “facts”, or rather distortions and fabrications thereof, championed by the Hotel Girls. Hence, the purpose of these articles, of which this is the first part, is to expose this discourse in the hopes of neutralising its poisonous effects.