A claim for damages due to tort is to recover actual damage suffered by the victim, rather than benefitting the victim further. Therefore, suffering actual damage is an element to establish the claim for damages, and there will be no order for damages if no damage is suffered.

Although a victim can request a court to decide the amount for damages in accordance with the facts of infringement as stipulated in Paragraph 3 of Article 88 of the Copyright Act, the element that the actual damage suffered is hard to prove has still to be established first.

In general, a copyright holder will receive royalty from a licensee while licensing her copyright and this royalty can be served as a benefit to be expected by the appellant. As a result, this is not the case that the actual damage suffered is hard to prove as stipulated in Paragraph 3 of Article 88 of the Copyright Act because the appellant can estimate her amount of actual damage based upon said benefit to be expected by her, and therefore the rule of Paragraph 3 of Article 88 of the Copyright Act is not applied here.