[2] The scope of “information related to a trial in progress” under Article 9(1)4 of the Official Information Disclosure Act, which is stipulated as information subject to non-disclosure

Meanwhile, it cannot be readily concluded that disclosure of information would seriously interfere with the fair performance of duties if it is made on the premise that the information was obtained from a foreign country or a foreign institution on the premise that it was not disclosed. However, such circumstance is a balancing factor that should be considered when determining whether there is a significant obstacle to the fair performance of duties, along with the relationship with the information provider, the intent of the information provider, the process

[2] Article 9(1)4 of the Official Information Disclosure Act (hereinafter “Information Disclosure Act”) provides that “information related to a trial in progress” shall be subject to non-disclosure in order to ensure citizens’ right to know and secure citizens’ participation in state affairs and transparency in state affairs by prescribing matters necessary for the public institution’s request for disclosure of information held and managed by the public institution, and to ensure transparency in state affairs. However, in order to prevent damage to national judicial action, such as the independence and fairness of trial, while disclosing all information held and managed by the public institution in principle, information related to a trial in progress should be subject to non-disclosure. Considering the legislative purpose of the Information Disclosure Act, the principle of information disclosure, and the form and purport of the provision of the above information subject to non-disclosure, a public institution other than the court does not necessarily need to be included in the records of trial in progress, but it is reasonable to view that all information related to the trial does not correspond to the information, but is limited to information that is likely to specifically affect the outcome of the trial in progress.

1. Whether the information constitutes information subject to non-disclosure under Article 9(1)5 of the Official Information Disclosure Act (hereinafter “Information Disclosure Act”) (ground of appeal No. 1)

A. In light of the purpose of the information disclosure system under Article 1 of the Information Disclosure Act and the legislative intent of Article 9(1)5 of the Information Disclosure Act, “information, if disclosed, which has considerable grounds for remarkably obstructing the fair performance of duties” under Article 9(1)5 of the Information Disclosure Act refers to a case where there is a high probability that fair performance of duties would considerably interfere with the objective of fair performance of duties when disclosed. Determination of whether to fall under such a case ought to be carefully determined based on specific matters by comparing and comparing the interests protected by non-disclosure such as fairness in performing duties and the interests protected by disclosure, such as guaranteeing citizens’ right to know, guaranteeing citizens’ participation in state affairs, and securing transparency in state affairs (see Supreme Court Decision 2009Du19021, Nov. 24, 2011, etc.).

Meanwhile, it cannot be readily concluded that disclosure of information would seriously interfere with the fair performance of duties if it is made on the premise that the information was obtained from a foreign country or a foreign institution on the premise that it was not disclosed. However, such circumstance is a balancing factor to be considered when determining whether there is a significant obstacle to the fair performance of duties, along with the relationship with the information provider, the intent of the information provider, the details of the

B. The reasoning of the lower judgment reveals the following facts.

(1) The Chinese High Island Publication Limited Corporation (hereinafter “China High Island”) is a company whose head office is located in Singapore, and whose shares are listed on the securities market operated by the Singapore Stock Exchange.

(2) On the securities market operated by the Korea Exchange (hereinafter “Korea Exchange”), the Chinese High Island entered into a contract with the Plaintiff and the representative supervising company for the public offering of the instant securities depository receipts with the Plaintiff, etc. on December 15, 2010. On June 1, 2010, the Plaintiff entered into an actual inspection on the Chinese High Island, participated in the preparation and submission of the registration statement submitted by the Chinese High Island to the Financial Services Commission based on the results of the inspection, and acquired 60% of the instant securities depository receipts.

(3) The instant securities depository receipts were listed on the securities market operated by the Korea Exchange on January 25, 201, but transaction was suspended from March 22, 2011. The Korea Exchange decided to delisting the instant securities depository receipts on September 13, 2013 on the ground of the auditor’s refusal to audit the Chinese High Island, and the instant securities depository receipts were listed on October 4, 2013.

(4) The investors who acquired the instant securities depository receipts filed a lawsuit against the Plaintiff, etc. In that lawsuit, the judgment of the court or the decision of recommending reconciliation that “The Plaintiff, a representative company, shall be liable for damages to the said investors pursuant to Article 125(1)5 of the Capital Markets Act, on September 30, 2010, there was false statement on the existence of cash, cash assets, and short-term deposits offered as security as of September 30, 2010, and thereby, the investors who acquired the instant securities depository receipts incurred damages from the public offering process of the instant securities depository receipts among the said investors.”

(5) The Plaintiff is proceeding to seek damages against the Han Young Accounting Corporation, etc. who performed audit of the Chinese ancient island and Chinese ancient island.

(6) Pursuant to Article 15(1) and (4) of the Act on External Audit of Stock Companies (hereinafter “ External Audit Act”), the Financial Supervisory Service was entrusted by the Securities and Futures Commission with the supervision of the audit report on the Chinese ancient island. In the course of performing the supervision, the Financial Supervisory Service received each of the information listed in the attached table 1 (hereinafter “each of the instant information”) directly from China’s High Island, Han Young Accounting Firm, Chinese Bank Seoul Branch, Transport Bank Seoul Branch, China Securities Supervisory Commission (hereinafter “CSC”), Singapore Monetary Office (hereinafter “MAS”), etc.

(7) Article 11 (a) of the International Securities Commission’s Multilateral Understanding (hereinafter “IOSCO MU”) to which the Republic of Korea is a party, provides that “Each agency shall keep confidential any information or document that arises in relation to the MOU, including the fact of the request made under this MOCO note, the details of the request, and matters concerning voluntary assistance between the authorities, and any matters related to the MOU.” The main sentence of paragraph (b) of the same Article provides that “the requesting agency shall not disclose any information or document acquired under this MOU’s MOU’s request.” However, the proviso of Article 11 (b) of the IOSCO MU provides that “if compliance with a legally binding demand, this shall not apply.”

C. We examine whether each information (information acquired from CRC and MAS) listed in [Attachment 1] Nos. 11 through 14, 30, and 31 in the judgment below constitutes information subject to non-disclosure under Article 9(1)5 of the Information Disclosure Act.

(1) For the following reasons, the lower court determined that each of the above information did not constitute information subject to non-disclosure under Article 9(1)5 of the Information Disclosure Act.

① The disclosure of information by the instant judgment does not contravene the first OSCO MU’s main text of Article 11(a) or (b). Furthermore, it cannot be readily concluded that disclosing each of the above information to the Plaintiff, a representative company related to the instant securities depository receipts, which is not an unspecified number of people, is contrary to the intent of CRC and MAS.

② The disclosure of each of the above information is no longer likely to prevent the Financial Supervisory Service from being provided financial information by other foreign financial supervisory authorities that have joined the IOSCO MMU.

(2) Such determination by the court below is just in accordance with the above legal principles, and there is no error in the misapprehension of legal principles as to the scope of information subject to non-disclosure.

D. We examine whether the information listed in No. 28 of the [Attachment 1] list as indicated in the lower judgment constitutes information subject to non-disclosure under Article 9(1)5 of the Information Disclosure Act.

(1) On the grounds delineated below, the lower court determined that the above information did not constitute information subject to non-disclosure under Article 9(1)5 of the Information Disclosure Act.

① The aforementioned information is merely included in the content that the 1st country of the Financial Supervisory Service provides business information to the 2nd country of the Financial Supervisory Service, and only objective data attached thereto. In addition, there is no content that may be a special non-disclosure as to the determination, method, and procedure of audit, etc. of executives and employees belonging to the

② Therefore, it cannot be deemed that the disclosure of the foregoing information would be abused by disclosure, or that the disclosure of such information would undermine the performance of duties of the executives and employees belonging to the Financial Supervisory Service.

(2) Such determination by the court below is just in accordance with the above legal principles, and there is no error in the misapprehension of legal principles as to the scope of information subject to non-disclosure.

E. We examine whether the remaining information constitutes information subject to non-disclosure under Article 9(1)5 of the Information Disclosure Act.

(1) On the grounds delineated below, the lower court determined that each of the above information did not constitute information subject to non-disclosure under Article 9(1)5 of the Information Disclosure Act.

(1) The remaining information includes official documents requested by the Financial Supervisory Service to submit data to Han Young Accounting Corporation, etc., objective data submitted by the Financial Supervisory Service from Han Young Accounting Corporation, etc., and questions and answers to the executives and employees of Han Young Accounting Corporation.

② It cannot be deemed that the official document demanding the person under consideration, etc. to submit materials, or the documents submitted by the person under consideration, etc., and the ordinary written answer leading to questions and answers merely constitutes a business method that shall guarantee know-how or confidential information about the supervision of the Financial Supervisory Service.

③ Article 15-2(1) of the External Audit Act provides that “The Securities and Futures Commission may have the Governor of the Financial Supervisory Service inspect the accounting books and documents of a company or its related company, or investigate the affairs and financial status thereof.” Article 20-2(2) provides that “If an auditor refuses or evades a request to submit data, etc. under Article 15-2(1) without good cause, or submits false data, the auditor shall be punished by a fine for negligence not exceeding twenty million won.” Therefore, if the Defendant uses such authority appropriately, the disclosure of the remaining information would result in the failure to obtain voluntary cooperation from the person subject to reduction in the future, etc., and thus, it does not seem difficult to perform supervision.

④ Therefore, the disclosure of the remainder of each information can not be deemed as being exposed to the outside of the FSS’s know-how and work process, etc., or there is a risk that the reduced number of persons, etc. will not cooperate in the supervision of the Financial Supervisory Service.

(2) Such determination by the court below is just in accordance with the legal principles as seen earlier, and there is no error in the misapprehension of legal principles as to the scope of information subject to non-disclosure, contrary to what is alleged in the grounds of appeal by the defendant. The case cited in the grounds of appeal by the defendant differs in specific matters, such as the content of the case and the process

2. Whether the information constitutes information subject to non-disclosure under Article 9(1)4 of the Information Disclosure Act (ground of appeal No. 2)

A. The Information Disclosure Act provides for “information related to a trial in progress” under Article 9(1)4 as information subject to non-disclosure in order to ensure citizens’ right to know and secure citizens’ participation in state affairs and transparency in state affairs by prescribing matters necessary for the public institution’s request for disclosure of information held and managed by the public institution and the public institution’s duty to disclose, but to prevent any damage to the national judicial action, such as the independence and fairness of trial, etc. In light of the legislative purpose of the Information Disclosure Act, the principle of disclosure of information, and the form and intent of the above provision of information subject to non-disclosure, etc., in order to refuse information disclosure on the grounds that public institutions other than the court fall under “information related to a trial in progress” as prescribed by the above provision, it is not necessarily necessary to be included in the records of trial in progress, but it is reasonable to deem that all information related to the trial does not correspond to the information, but is limited to the information that is likely to specifically affect the results of a trial in progress or trial (see Supreme Court Decision 2009Du1021, Nov. 24, 2011).

B. On the grounds delineated below, the lower court determined that each of the instant information did not constitute information subject to non-disclosure under Article 9(1)4 of the Information Disclosure Act.

(1) Each information listed in [Attachment 1] Nos. 2, 3, 5, and 8 of [Attachment 1] as indicated in the holding of the court below includes only the content that Han Young Accounting Corporation et al. did not intentionally delay or avoid the submission of data to the Financial Supervisory Service, which is irrelevant to the outcome of the deliberation or trial of the instant lawsuit

(2) Even if each information other than the above information is disclosed, it is only deemed that specific facts can contribute to the fairness and accuracy of trial by clarifying them in the pertinent litigation, and it does not seem that there is a risk of undermining the independence and fairness of trial related to the instant litigation.

C. Such determination by the court below is just in accordance with the above legal principles, and there is no error of misapprehending the meaning of information subject to non-disclosure or the legal principles on the inclusion thereof, or failing to exhaust all necessary deliberations.

3. Whether the grounds for non-disclosure under each subparagraph of Article 9(1) of the Information Disclosure Act, other than the grounds for disposition, should be considered (ground of appeal No. 3

The defendant asserts that the information of this case constitutes non-disclosure information under Article 9 (1) 2 (the matters concerning diplomatic relations), Article 9 (1) 4 (the matters concerning criminal investigations), and Article 9 (1) 7 (the matters concerning the management and trade secrets of corporations) of the Information Disclosure Act. Thus, the court below should have determined the information of this case by considering it even if it did not constitute the grounds for disposition.

However, in a case where there is no identity of basic factual basis, it is not allowed to add or modify the legal basis on the grounds for non-disclosure under each subparagraph of Article 9(1) of the Information Disclosure Act. This part of the grounds of appeal is not different from the fact that the addition of the grounds for non-disclosure is recognized. Therefore, it is difficult

4. Conclusion

The appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Jae-chul (Presiding Justice)