[2] Whether Article 59-2 of the Criminal Procedure Act constitutes “where there are special provisions in other Acts with respect to disclosure of information” under Article 4(1) of the former Act on the Disclosure of Information by Public Institutions (affirmative), and whether a request for disclosure of information under the former Act on the Disclosure of Information in Criminal Trials is permissible with respect to disclosure of information in criminal trial final and conclusive proceedings (negative

[2] In light of the content and purport of Article 59-2 of the Criminal Procedure Act, Article 59-2 of the Criminal Procedure Act provides different provisions from the former Act on the Disclosure of Information by Public Institutions (amended by Act No. 11991, Aug. 6, 2013; hereinafter “Information Disclosure Act”) as to whether or not disclosure of records of a criminal trial is made or the scope of disclosure, appeal procedure, etc., constitutes “where there are special provisions in other Acts concerning disclosure of information” under Article 4(1) of the Information Disclosure Act. Therefore, disclosure of records of a criminal trial is not allowed pursuant to the Information Disclosure Act.

1. Article 4(1) of the former Act on the Disclosure of Information by Public Institutions (amended by Act No. 11991, Aug. 6, 2013; hereinafter “Information Disclosure Act”) provides that “Any disclosure of information shall be governed by this Act, except as otherwise provided in other Acts.” In this context, to exclude the application of the Information Disclosure Act on the ground that the disclosure of information constitutes “where there are special provisions in other Acts with respect to the disclosure of information,” the said special provisions must be “law,” and further, the details should be differently provided in the Information Disclosure Act on the subject and scope of the disclosure of information, procedures for the disclosure of information, and information subject to non-disclosure (see, e.g., Supreme Court Decision 2007Du2555, Jun. 1, 2007).

Article 59-2 of the Criminal Procedure Act provides, “Any person may file an application for perusal or copying of the records of trial with the prosecutor’s office in which the records of trial have become final and conclusive for the purpose of remedy, academic research, or public interest.” The main sentence of paragraph (2) provides, “Where the public prosecutor falls under any of the following subparagraphs, it may place restrictions on perusal or copying of the records in whole or in part (Article 1),” “where the disclosure of the records of trial is likely to seriously undermine the national security, good morals, maintenance of public order, or public welfare, due to the disclosure of the records of trial” (Article 2); “Where the disclosure of the records of trial is likely to seriously undermine the reputation or privacy of the persons concerned, safety of life or peace in life of the persons concerned,” “where the disclosure of the records of trial is likely to seriously destroy evidence or escape, such as an accomplice, or to seriously affect the trial of the relevant case” (Article 6).

Considering the contents and purport of Article 59-2 of the Criminal Procedure Act as above, Article 59-2 of the Criminal Procedure Act provides differently from the Information Disclosure Act as to whether or not to disclose, scope of disclosure, appeal procedures, etc. of records on a criminal trial decision, and thus, constitutes “where there are special provisions in other Acts concerning the disclosure of information” under Article 4(1) of the Information Disclosure Act. Accordingly, a request for disclosure of records on a criminal trial decision is not allowed pursuant to the Information Disclosure Act.

2. According to the reasoning of the lower judgment and evidence duly adopted and examined by the lower court, the Plaintiff was sentenced to nine years of imprisonment (not guilty with respect to murder during the facts charged) for the crime of heavy confinement, etc. at the Daejeon District Court on January 10, 207, and the judgment became final and conclusive on October 9, 2008 through the appellate court and the final appeal; ② the Plaintiff requested the Defendant to disclose information on the records of the criminal trial in the above criminal trial on September 19, 201 pursuant to Article 10(1) of the Information Disclosure Act; ③ the Defendant made a non-disclosure decision with respect to the Plaintiff on September 30, 201 to the effect that “non-disclosure is subject to the Criminal Procedure Act and the Information Disclosure Act”; and ③ the Defendant notified it in accordance with Article 13 of the Information Disclosure Act.

3. Examining the above facts in light of the legal principles as seen earlier, the Plaintiff’s claim for disclosure of the instant information is about the final and conclusive records of the criminal trial, and since the request for disclosure of the final and conclusive records of the criminal trial is not allowed pursuant to the Information Disclosure Act, the decision of non-disclosure which rejected

Nevertheless, on the erroneous premise that the Information Disclosure Act applies to the disclosure of the aforementioned criminal trial records, the lower court determined that the instant decision was unlawful on the ground that the said information does not constitute information subject to non-disclosure under the Information Disclosure Act. In so doing, the lower court erred by misapprehending the scope of the Information Disclosure Act and the legal doctrine on disclosure of the criminal trial records, thereby adversely affecting the conclusion

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hyung (Presiding Justice)