12. Perusal or Duplication of Defaulters' List

[22-1(B) KCCR 323, 2008Hun-Ma663, May 27, 2010]

In the case, the Constitutional Court rejected the complaint, holding Article 72 (4) of the Civil Execution Act that stipulates any person can request for perusal or reproduction of the defaulters' list does not infringe the right to self-determination on personal information of complainants who are on the defaulters' list, not violating the principle of excessive restriction.

Background of the Case

The complainants are listed on the defaulters' list due to the default even after the court decision that orders payment. The complainants filed this constitutional complaint, alleging the unconstitutionality of Article 72 (4) of the Civil Execution Act that allows any person, despite she may not have any interest with debtors, to peruse or reproduce the defaulters' list because it infringes on the right to privacy of Article 17 of the Constitution.

Provisions at Issue

Civil Execution Act (enacted by Act No. 6627 on January 26, 2002)

Article 72 (Keeping of List)

(4) Any Person may file a request for a perusal or reproduction of the defaulters' list or its duplicate.

Summary of the Decision

The Constitutional Court, in an opinion of 4 (constitutional) : 5 (unconstitutional), rejected the constitutional complaint of Article 72 (4) of the Civil Execution Act that stipulates any person can file a request for perusal or reproduction of the defaulters' list or its duplicate (hereinafter, the "instant provision"), with the following reasons:

1. Court Opinion of Four Justices

The indirect compulsory performance of fulfillment and the safety of transaction, intended by the instant provision, are legitimate legislative purpose. The instant provision also has reasonable means in perusal or reproduction of the defaulters' list by the public may indirectly enforce the discharge of obligation against unfaithful debtors for the disadvantages of defamation by listing on the defaulters' list; and the instant provision may contribute to the safety of transaction because the perusal of the defaulters' list can be a means of credit check of the transaction party.

The instant provision, not limiting the qualification for the perusal or reproduction of the defaulters' list, intends the efficacy of indirect compulsory payment of debts through the mental pressure upon debtors. Even if the provision allows the perusal or reproduction of the defaulters' list only to a person who can vindicate the financial relationship with debtors, such vindication would be merely the confirmation of the potential possibility of the formation of transactions because a person who is willing to peruse the defaulters' list is generally not the one who has already established transactions such as conclusion of contracts with debtors, but the one who would create transactions after checking the credits of debtors: As a result, such limitation would not cause any substantial differences, compared to the instant provision that does not limit the qualification for the perusal or reproduction of the defaulters' list. Besides, the risk of the infringement on the right to self-determination on personal information through the perusal or reproduction of debtors by an irrelevant person would be not significant in that the instant provision does not disclose the defaulters' list to the public aggressively, but allows the perusal or reproduction of the defaulters' list to a person who wants to peruse or reproduce the defaulters' list; the perusal or reproduction of the defaulters' list requires the specific information on the debtors, such as names and social resident registration number; and the practice requires to state the qualification of an applicant upon the request of the perusal or reproduction.

The risk of abusing the duplicated list would not be substantial in

that the nature of the defaulters' list requires its disclosure; the reproduction is merely accompanied by the perusal, which does not infringe the right to self-determination on personal information of debtors by itself; Article 72 (5) stipulates that the defaulters' list shall not be published by means of printed matter, etc; and defamation, slander, or business disturbance would be punished under criminal law. Therefore, the instant provision does not excessively regulate to achieve the legislative purpose, thereby confirming to the principle of least restrictiveness.

Debtors are listed on the defaulters' list when the debtor's reputation and credit should be reevaluated due to her unfaithfulness. Thus, the public interests of the indirect compulsory enforcement and transaction safety intended by the instant provision overweigh the private interests of the protection of personal information of debtors listed in the defaulters' list, suggesting the instant provision does not violate the principle of balance of interests.

2. Dissenting Opinion of Five Justices

The disclosure of default of debtors to the irrelevant third party through the perusal of the defaulters' list rarely affects the efficacy of indirect compulsory enforcement because its probability is significantly low and it is merely conceptual or abstract defamation. Rather, the indirect compulsory enforcement by the disclosure of the default of the debtor would be effective when the debtor faces the formation of economic activities or transactions. Because the transaction party of the debtor is specified at this stage, the legislative purpose would be sufficiently achieved by allowing the perusal or reproduction of the defaulters' list only to such specified person.

Even from the perspective of the perusing or reproducing person, it would be hardly considered that an irrelevant person wants to peruse or reproduce the defaulters' list; and even if there is such a case, the necessity to allow such disclosure would be rarely admitted. Because the credits of the debtor are generally interested after the stage of the examination of economic activities or the formation of transactions with the debtor, the legislative purpose, the safety of transactions, would be achieved even if the perusal or reproduction of the

defaulters' list is allowed to a person who vindicates reasons. Therefore, the instant provision violates the principle of least restrictiveness in that it permits the perusal or reproduction of the defaulters' list to the public without limiting the qualification of the perusal or reproduction; and violates the principle of balance of interests in that the risk of the infringement of the right to self-determination on personal information of debtors is more significant than the pursued public interest.