[2] Criteria and discretion to determine "necessary work" under Article 18 (2) of the former Criminal Administration Act (affirmative)

[2] Article 18(1) of the former Criminal Administration Act (amended by Act No. 4936 of Jan. 5, 1995) provides that "a convicted prisoner may meet with others or receive correspondence with permission of the warden." Paragraph (2) of the same Article provides that "The meeting and correspondence with persons other than relatives shall be limited to the case where there is no need for meeting and correspondence with persons other than relatives." Considering that the purpose of the above provision is to guarantee the fundamental right to freedom of meeting with which a person is present under the Constitution, the head of the prison upon receipt of an application for meeting with a person other than relatives, the above provision is to ensure that the above provision's tendency, behavior, management in the prison, security situation, and other specific circumstances are inappropriate for the correction or treatment of the convicted prisoner, the convicted prisoner's meeting should be subject to "necessary absence or absence," which is considerably limited to the degree of abuse of personal rights, such as the inherent status of the person who is punished for the punishment of the prisoner, and thus, it does not constitute an abuse of his/her discretionary right.

The judgment of the court below to the same purport is correct, and there is no violation of law as otherwise alleged in the ground of appeal.

2. Article 18(1) of the former Criminal Administration Act (amended by Act No. 4936, Jan. 5, 1995) provides that "a convicted prisoner may meet with others or receive correspondence with the permission of the warden." Paragraph (2) provides that "The meeting and correspondence with persons other than relatives shall be limited to the case where there is no necessity for meeting and correspondence with those other than relatives." Considering that the purpose of the above provision is to guarantee fundamental freedom right to only people, the head of prison who receives an application for meeting with a person other than relatives, the above provision provides that the above provision is to guarantee fundamental right to only people. Considering that permission to meet is inappropriate for the edification or treatment of the convicted prisoner, the management of the prison, security situation, and other specific circumstances, the existence or absence of "necessary without permission" should be limited to the extent that it does not seriously infringe upon the personal rights of the prisoner, such as the inherent status of the person who is punished for the punishment of the prisoner, and thus, it does not constitute an abuse of the discretionary authority.

The court below acknowledged that when the plaintiffs, an attorney-at-law, were convicted of violation of the National Security Act and filed an application for interview with the non-party who is confined in the Jeju prison, the Jeju prison held various religious events for religious edification of inmates, and the non-party or his wife did not express his/her intent to request a retrial against the Japanese correctional institution or notified that he/she requested a retrial against the Japanese correctional institution (the non-party did not participate in the edification because he/she is not a astronomical believers). The non-party or his/her wife did not know that the non-party or his/her wife had expressed his/her intention to request a retrial against the Japanese correctional institution or that he/she did not want to request a retrial because he/she adapted to the prison life at that time, and did not have any intent to request a retrial. This fact-finding of the court below is justified, and there is no error of law by misunderstanding facts or violating the rules of evidence, as otherwise alleged in the ground for appeal.

On the other hand, the facts are identical to this, while the Jeju Correctional Institution was in possession of an independent edification program, it was not necessary for the institution of the third institution to allow the non-party, who is not the astronomical believers, to engage in activities as referred to in item (g) of the astronomical Curriculum without any special circumstance. In addition, it is reasonable to view that the plaintiffs' request for an interview with the non-party, who is being in a prison life without any particular psychological impulse, is inappropriate for the correction of the plaintiff's request for a retrial based on the judgment that the request for a retrial is irrelevant to the express opinion of the plaintiff or his family or for the non-party, who is in a prison life without any specific psychological impulse, is a legitimate disposition within the discretionary scope.

The judgment of this court cited in the ground of appeal is not appropriate to be invoked in this case as it concerns the case where Article 18 (2) of the former Criminal Administration Act applies mutatis mutandis to an unconvicted prisoner pursuant to Article 62 of the former Criminal Administration Act.

On the other hand, there is no reason to view that the plaintiffs' personal interests as an attorney-at-law in this case were infringed specifically, and even if the court below did not make a direct and explicit decision as to the plaintiffs' assertion as alleged in the ground of appeal, the result of the judgment does not affect. Accordingly, the grounds of appeal on this point are dismissed.

3. Therefore, all appeals shall be dismissed, and the costs of appeal shall be assessed against the losing plaintiffs. It is so decided as per Disposition.

Justices Lee Don-hee (Presiding Justice)