[문서제출명령에대한이의][공2010상,334]
The meaning of “documents kept or held by a person who is or was a public official in connection with his/her duties” under Article 344(2) of the Civil Procedure Act, and Acts applicable to the disclosure of such official documents (=Act on the Disclosure of Information by Public Institutions)
Article 344(2) of the Civil Procedure Act provides that the holder of a document may not, in principle, refuse to submit the document, even though the document does not fall under the document stipulated in Article 344(1) of the same Act; however, the “documents kept or held by a person who is or was a public official in connection with his/her duties” may be exceptionally refused to submit. Here, “documents kept or held by a public official or a former public official in connection with his/her duties” refers to official documents held and managed by a State agency. The disclosure of such official document should be subject to the procedures and methods prescribed by the Official Information Disclosure Act.
Article 344 of the Civil Procedure Act
Korea
Applicant 1 and one other
Daejeon High Court Order 2008Ra2 dated March 31, 2008
The order of the court below is reversed, and the case is remanded to Daejeon High Court.
The grounds of reappeal are examined.
Article 344(2) of the Civil Procedure Act provides that the holder of a document may not, in principle, refuse to submit the document, even though the document does not fall under the document stipulated in Article 344(1) of the same Act; however, the “documents kept or held by a person who is or was a public official in connection with his/her duties” may be exceptionally refused to submit. Here, “documents kept or held by a public official or a former public official in connection with his/her duties” refers to official documents held and managed by a State agency. The disclosure of such official document should be subject to the procedures and methods prescribed by the Official Information Disclosure Act.
In light of the above legal principles and records, the documents submitted by the applicant in this case are the prosecutor's written personnel order kept by the public prosecutor of the Daejeon District Public Prosecutor's Office belonging to the re-appellant and the investigation records or petition records of the third party, which do not fall under all the documents of each subparagraph of Article 344(1) of the Civil Procedure Act. Furthermore, they constitute "documents kept or held by a public official or a former public official in relation to his duties." Thus, the respondent may refuse to submit the above documents.
Nevertheless, the court below maintained the decision of the court of first instance, which is the applicant's receipt of the applicant's application for the order to submit documents in this case, as it is. The court below erred by misapprehending the legal principles on the order to submit documents, thereby affecting the conclusion of the judgment. The ground for reappeal pointing this out is with merit.
Therefore, without determining the remaining grounds for reappeal, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim Young-ran (Presiding Justice)