Before I talk about today’s hearing, it’s important to bring up the circumstances surrounding the hearing before it opened and what was expected to happen.
At today’s hearing, Yoon Seong Hui, the Chief of Finance for SM, was supposed to stand as witness to testify about the earnings distribution and related items. What should be noted here is that Ms. Yoon is a witness requested by our boys’ side. This is because they are concluding under Article 103 of the Civil Code that their exclusive contract is unfair in content, among other things, in the way the profits and returns are distributed; in order to prove this it appears that they requested the witness testimony of the Chief of Finance [at SM]…
The purpose of having Ms. Yoon Seong Hui testify in court was to find out if the earnings distribution as stipulated in the contract was implemented in reality; what was the amount that SM distributed to Dong Bang Shin Ki; what were the methods used to determine the allotted income of each member; if the earnings were clearly announced; if there is documentary evidence relating to deducted expenses; how much exactly was distributed to the DBSK members at the end of the calculations; if accurate data on the costs and earnings distribution schemes were ever released and explained to the members, etc. However, Yoon Seong Hui never showed up to today’s hearing. I’ll explain in more detail below the reason why, but she wasn’t ready to answer the questions that JYJ’s side would have posed.
On Jan. 12, 2011, SM’s legal representatives submitted a request to the court to delay the hearing, but since this was a request made unilaterally without securing an agreement from JYJ’s side and because there was no outstanding reason to postpone the hearing, the court dismissed the request.
In the meantime, on Jan. 14, 2011, JYJ’s side submitted preparatory documents, the important points of which were…
1. The Supreme Court has previously ruled that a contract similar to the one in question in this case was invalid/null and void [Translator’s note: This is in reference to the case examining the contract of Kevin Woo of UKiss]
2. The Fair Trade Commission has already issued SM a severe warning to change the content of 13-year exclusive contracts
3. Although the injunction to suspend the effect of the contract has been accepted, JYJ are being blocked from undergoing broadcast and media activities because SM is using the fact that both parties are engaged in a lawsuit to unduly influence the current situation and hinder [JYJ’s] activities
4. As entertainers, JYJ already only have so much time to be active
5. Currently the case has surpassed the 6-month mark and is fast approaching one year since its beginning, yet there’s still no indication of when it will finally end
In consideration of the costs and losses incurred [by the lawsuit] and in the interests of conducting the remainder of the case in a smooth and easy fashion (from the economic perspective on this lawsuit), it is necessary to issue at least an interim verdict on the question of the exclusive contract’s validity and refrain from further delaying hearings. The documents argued fervently on this position.
After SM’s request to postpone the hearing was rejected, [SM] submitted two sets of preparatory documents on Jan. 17, 2011.
The first document claimed,
That the interim judgment that JYJ’s side is asking for is not a practice currently conducted in civil suit legal proceedings and as such lacks grounds to be accepted, that decisions on the validity or invalidity of exclusive contracts must be announced in a partial and not an interim verdict, and that in the current case nothing else can be accepted; for all these reasons, whether through an interim verdict or a partial verdict, the court must not decide on the validity or invalidity of the contract first.
The second document addressed,
the amount in damages that [SM] demanded at the last hearing due to the effects of the injunction to suspend the exclusive contract, which comprises of losses/damages from the following:
1. Damages incurred through JYJ’s non-appearances at already concert tours already scheduled prior to the lawsuit,
2. The breach of contract penalty with cosmetics company ‘Missha’ for which the three were supposed to be models
3. Japan’s Avex and SM wanted to conclude an exclusive contract together, but JYJ’s contract with C-JeS prevented that, and so the damages from the loss of that deal must be paid.
On the claims made by SM on payment of damages, the judge didn't seek to know the exact amount of damages incurred for each item but upon hearing SM conclude that it stood at 2,200,000,000 won, he said while he could confirm the amount for points 1. and 2. he would need additional proofs for 3. and would be requesting supplementary evidence at a later time.
After hearing the statements from the legal representatives of both SM and JYJ, the judge went on to say that while practically speaking there is a need to declare at least a partial verdict on the validity or invalidity of the contract, SM is right in saying there is insufficient legal ground for that measure; if JYJ’s side feels otherwise, the judge requested that they submit evidence or data from a legal investigation. [Translator’s note: I believe the judge is referring to JYJ's side’s claim that SM is actively blocking JYJ’s entertainment activities in disregard of the court’s decision on the injunction to suspend the contract]
When the judge asked why the witness Yoon Seong Hui was not present to testify, SM responded that upon looking at the data requested by JYJ they realized that there would be a lot of questions for which the witness would not be ready to answer and that’s why she did not show up to testify.
Then [the judge] asked if the witness would be ready by the next appointed hearing date—this is the day that Nam Seo Young, a new witness requested by SM, is scheduled to testify—and if she would be able to testify along with Nam Seo Young, to which SM responded, since there will be a lot of questions directed at Yoon Seong Hui and that will drag out the lawsuit it’d be difficult to cover both witnesses in the same day…
To which JYJ's side replied, there aren’t that many questions/interrogation points for Yoon Seong Hui, that it’d be no problem conducting her testimony in half a day, and that if necessary they would rather have her and Nam Seo Young testify in the same day in the interests of concluding this lawsuit as quickly as possible. In the end, the court stated it would decide on Nam Seo Young’s testimony date after hearing Yoon Seong Hui at the next session. On the issue of calculation of damages, SM is to prepare and hand over as quickly as possible the data requested by JYJ’s side.
SM then replied, with an obvious excuse, that since this is the first time organizing/compiling the inventory of data that JYJ’s side has requested, and because all the data from the Japanese agency can only be obtained after negotiations over there, it would take a very long time to secure and may not include all the requested material if negotiations fail.
As his final word, the judge said,
as per SM’s position, in the present situation there is insufficient ground to issue an interim or partial judgment, but as there is a real need to swiftly conclude the case, the lawyers of both sides are to mutually fulfill their duties in a cooperative manner, and so the court will be giving them plenty of time; in light of this favor, SM is expected to materialize all the data and documents necessary for and related to the calculation of JYJ's damages [from the contract] and submit it by the next hearing upon order of the court.
The next court hearing has been set for March 15, 2011 at 2pm…
Up to here was the summary of events from the court hearing. What follows is my personal interpretation of it…
1. Those who have read the above account, no matter whose fan you are or whose fan you are not, it’s easy to see that SM wants to delaying the court proceedings, but the position of the court is that the case must proceed quickly.
2. In my opinion, it would have been better for SM to use the costs, time and energy it bears from continually delaying the court proceedings to growing and profiting from its business instead…such is my wishful thinking. (I don’t know if the judge also thought of this when he said… “It is in both SM and JYJ's interests that this lawsuit concludes quickly”…a barbed comment full of intent.)
3. Unlike other cases that have dealt with exclusive contracts, the fact that SM has claimed/filed for monetary reparation against JYJ is worth noting. If SM had only sought a ruling on the status of the exclusive contract, JYJ's side likewise might have only sought a ruling on the validity or invalidity of the contract…essentially, when “money” is involved it’s inevitable for the trial period to get longer…all the various documentary evidence related to expenditure from the past 6 years, of which the majority requires the cooperation of SM to acquire…
Do you think SM just randomly claimed 2,200,000,000 won from JYJ?
And yet, 9 months into the trial, and after the pressure from the court has started to increase [SM] decides to reveal that it has suffered 2,200,000,000 won in damages, which it barely specifies in orderly categorization and of which one category is almost impossible to supply evidence???
If this was exclusively a case examining the validity status of the exclusive contract, it might have ended just after Kang Jeong Ah’s witness testimony (Decision: one can consider that it was made at that hearing). Then maybe the preliminary judgment might have already been issued…
However, in claiming financial reparations, SM has once again earned two months…no, they have perhaps earned more…
Since SM filed for financial reparations, JYJ's side probably had no choice but to do the same thing. Because as those who have nothing to say on such matters, SM claimed damage compensation from JYJ, and in this kind of situation JYJ’s side can’t be expected to admit that it didn't make a comeback…in any case, now that SM has filed a financial compensation claim the court proceedings are already further delayed to some extent and JYJ can’t be expected to sit on their hands and just be served; hence the determination to meet fire with fire on the issue of financial compensation for damages. Also, even if this exclusive contract is declared null and void by judgment, there’s no avoiding having to fight over the distribution of financial compensation anyway, which means that this irritating lawsuit process will have to be repeated…might as well sort through it all at once via financial compensations claims in the same trial…
In any case, it looks like SM might be digging its own grave here…in an attempt to prolong the trial process by claiming 2,200,000,000 won in damages, the court has responded just as strongly in its determination to speed up the proceedings, practically ordering [SM] that it complies with JYJ's request with regards to documents, data and evidence necessary to prove the damages suffered [by JYJ]… now [SM] is in a situation where it might have to concede money to JYJ…
Here I will indulge in a small digression. As soon as the hearing was finished, I, Sandeulbaram and the fans who attended shared a brief conversation and then went straight to the convenience store located on the 1st floor. There we ran into SM’s lawyers and representatives, who were standing together in a group…their expressions…rather pitiable…At times like these my mother uses this apt expression… "Noses strai~~~ght to the floor…"
4. The witness who was supposed to testify today is SM’s Chief of Finance and is still occupying that position…Although she is a witness requested by JYJ's side, she is not JYJ's person…there’s no rule that says the witness one requests needs to be on one's side… it's sufficient for the person to verify the information one needs verified in court.
Thankfully, what Yoon Seong Hui was needed to testify on is more dependent on written documents—which most of the interrogation would have brought up—rather than on her personal experience or expertise; so even if she’s not friendly toward JYJ, since all that is needed is her testimony, it doesn't matter that she’s an SM employee. In addition, when a witness testifies in court, whether or not her testimony is believable or not (whether or not legitimate evidence is adopted as a standard) is for the judge to decide at his discretion.
Despite being on SM’s side, she most likely won’t be able to lie in a way that negatively affects JYJ… because the witness only answers to the questions prepared by JYJ’s side, and even SM’s cross-examining questions in response must be limited to the scope already set by JYJ's side.
On the other hand, if an issue negative to SM comes up…she’ll probably simply say… ‘It’s been so long ago that I don’t remember…I was not in charge of that area so I don’t know…’
Nonetheless, since there’s now a space of two months in which to prepare for JYJ's side’s questions, it is my wish that on March 15, Ms. Yoon Seong Hui comes more than ready and answers each question posed by JYJ's side with extreme care and accuracy…if only…
5. On the question of the validity status of the exclusive contract, the reason why the court couldn't issue a partial or interim judgment is a very complicated matter of Civil Suit Law that the average person will find difficult to understand, so I will try to explain it in the simplest terms possible (to be honest, I’m not sure if I will even succeed since I myself don’t fully understand.^^, The main supporting source for what follows below comes from Professor Lee See Yoon's ‘On Civil Suit Law’.) And the reason why I’m taking the time to explain this even in simple terms is because it may appear to many, after the court declined to give an interim verdict, that the trial is flowing in SM’s favor or that the court is taking SM’s side. There may be many with this misunderstanding.
- Interim Judgment: Decision on the evidence, though partial and incomplete, presented in a lawsuit,
In other words, when there is conflict over the existence of lawsuit requirements, grounds for appeal, the withdrawal of charges of validity or invalidity
What’s under question in these hearings is not the validity status of the contract but the objective of the lawsuit (ie., compensation distribution), so an interim ruling would be inappropriate
- Partial ruling: a final judgment made when part-way through the lawsuit process it becomes clear that it is unnecessary to continue,
For example, when a key component of claims filed by either side has been secured and confirmed
In the current situation, the lawsuit filed by SM and that filed by JYJ are being processed in the same hearings, but it is important to note that they are in fact two independent cases. The judges only decided to have them examined in the same hearings because they determined there was enough overlap in the substance of both. However, because they are still nonetheless two independent lawsuits and because the question of the validity status is different from that of financial reparations, a partial judgment in this case has been deemed inappropriate.
Also, the partial ruling card was already played in the first hearing, but in the second hearings (ie, the hearings currently in process) it has the potential to complicate matters due to the decided format in the proceedings (ie., examining two lawsuits at once).
6. To conclude, I intend to reorganize a part of the account I wrote last time and wrap up the postscript…Thank you to those who took the time to read my long account!~ JYJ Fighting!~ Us fans Fightinggggg!!!!~~~~~
『I believe that we can consider the ruling in this case involving our boys as more or less decided…the problem is the time it’s taking for that rulin to come…
It’s only if this lawsuit is quickly concluded that the cowardly and low-class justification that isn’t even a justification ‘Because they are involved in a lawsuit it’s difficult for us to broadcast them on television’ can disappear…
At that point we can expose the treatment of entertainers by their management companies, which for too long has been regarded as custom, as the backward and socially inappropriate relationship that it really is. From the perspective of our boys, it is only after this conflict with their company gets resolved that they can start relieving the uncomfortable awkwardness in their hearts.
However, even if our boys win, it doesn't mean that SM will collapse or that the status of broadcasting stations will fall or that they will correct their errors or that the relationship between management companies and broadcasters will change for the better…
Rather, the ruling from this trial will have the potential to announce loud and clear, ‘this contract due to its social retrogression is null and void.’…In defying a contract that is clearly in opposition to a just society, wouldn't such a ruling make it possible for other entertainers who escape from giant management companies to succeed in their media activities??
Therefore, the materialization of a just society is not the burden of our boys but a homework for the rest of us.』
These days…we fans…are working hard!~ and long!~ on that homework, right??
This is an expression of our own youth in protecting and cheering on the youth [of JYJ]…kekeke
P.S.: Those who are distributing this piece to other places…I would like you to inform me of what those places are…if you could provide me a link, I would be even more thankful…I won’t have to worry about my piece being used by antis to defame our boys, right??? I don’t want them to distribute this…
P.S.: On the issue of whose witness is Yoon Seong Hui…I had a lot to say on this matter so I’m adding some more here…
There seems to be a lot of arguing back and forth on this issue…
But it is certain that Yoon Seong Hui is a witness for JYJ’s side…
Several have searched her on the Supreme Court website…
It is true that at first SM requested Kang Jeong Ah and Yoon Seong Hui as witnesses…
However, JYJ's side also requested Yoon Seong Hui as their witness..(verbally, in court…)
So let me re-summarise what happened at the 12/7 hearing (those of you who attended probably remember well)… Kang Jeong Ah was also a witness requested by both sides and as such was supposed to be interrogated and cross-examined by both sides, but because this could lead to a confusion in the court records it was decided that both sides would simply submit their questions to her to the court as documentary evidence…
Seeing as how Yoon Seong Hui has also been requested by JYJ’s side as a witness, for now she is accepted as JYJ's witness…(this matter will become clearer at the 3/15 hearing when it will be decided which side gets to question her first).
Therefore, because Yoon Seong Hui was first requested as witness by SM, the Supreme Court website lists her as SM’s witness, but in the process of the court case JYJ’s side also requested her and so she is recorded as JYJ’s witness…
Someone who shares the same opinion as me has posted a detailed explanation on this…http://blog.naver.com/coconut1986/
The Supreme Court website only reflects information related to submission of documents but not always what happens afterward in the process of the court case.
Also, when it comes to calling witnesses to testify, there are two ways—by ‘accompaniment’ and by ‘summons’. In the case of ‘accompaniment’, the witness is brought by the side that requests her...in the case of a ‘summons’ it is the court that makes the request/order because for some reason the witness is difficult to bring to court. In the present case, because SM agreed to cooperate in securing Yoon Seong Hui’s testimony, it appears that SM will bring her in on ‘accompaniment’.
Whosever witness she is, Yoon Seong Hui’s absence is the responsibility of SM and most likely an intentional move [by SM]
Because it seemed there was a lot of confusion on this issue, I have organised it again here.
translated & shared by: Jimmie of TheJYJFiles
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