[1] 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

[2] The method of determining the identity of basic facts, which is a requirement for an administrative agency to add or change grounds for disposition in an appeal litigation

[3] In a case where the Economic Reform Team and its research institute Gap requested the Chairperson, etc. of the Financial Services Commission, etc. to disclose information related to the approval for holding in excess of the stockholding limit of the same stocks issued by Lone Star to the Financial Services Commission and the semi-annual examination of qualifications for holding in excess of Lone Star's issued stocks issued by the Korea Exchange Bank, but the Chairman, etc. of the Financial Services Commission, etc. refused disclosure to the public pursuant to Article 9 (1) 4 of the Official Information Disclosure Act on the grounds that the above information constitutes information related to a trial in the Supreme Court and the Seoul Central District Court, which is a separate case, on the ground that the above information constitutes information related to a trial in the Supreme Court and the trial in the Seoul Central District Court, the case affirming the judgment below holding that

[4] The meaning of “information, if disclosed, which has considerable grounds to believe that the disclosure may seriously interfere with the fair performance of duties” under Article 9(1)5 of the Official Information Disclosure Act, and the method of determining whether the information constitutes information corresponding thereto

[5] The meaning of "management and trade secrets of corporations, etc." under Article 9 (1) 7 of the Official Information Disclosure Act and the method of determining whether information falls under such information

[1] Considering the legislative purpose of the Official Information Disclosure Act (hereinafter “Information Disclosure Act”), the principle of information disclosure, the form and purport of the provision on information subject to non-disclosure, etc., in order to refuse the disclosure of information on the grounds that public institutions other than the court fall under “information related to a pending trial” under Article 9(1)4 of the Information Disclosure Act, it does not necessarily need to be included in the litigation records of the trial in which the information is in progress. However, it is reasonable to view that all the information related to the trial is not corresponding thereto, but limited to the information that is likely to have a specific impact on the

[2] In an appeal seeking the revocation of an administrative disposition, the agency may add or alter other grounds only to the extent that the grounds for the initial disposition are identical to the basic factual relations. The existence of such basic factual relations is determined based on whether the basic social factual relations are identical in basic points, based on the specific facts prior to the legal evaluation of the grounds for disposition. Thus, it cannot be said that the additional or modified grounds existed at the time of the disposition, or that the parties knew of such facts.

[3] The case affirming the judgment below holding that in a case where the Financial Services Commission Chairperson et al. requested the Chairperson, etc. of the Financial Services Commission, etc. to disclose information related to the approval of holding in excess of the stockholding limit of the same person of shares issued by Lone Star in the foreign exchange bank and the examination of qualifications semi-annually for holding in excess of Lone Star's issued stocks, but the Chairman, etc. of the Financial Services Commission et al. refused disclosure pursuant to Article 9 (1) 4 of the Official Information Disclosure Act (hereinafter "Information Disclosure Act") on the grounds that the above information was related to the trial in progress under the Supreme Court Decision 2007Du11412, the first refusal disposition by the Chairman, etc. of the Financial Services Commission, if it stated that the above information constitutes information related to the trial in progress under the Supreme Court Decision 2006Du1352, 1295, 1351, which is a separate case, and further assertion of the grounds for disposition cannot be allowed because it added the original and basic grounds for disposition.

[4] In light of the purpose of the information disclosure system under Article 1 of the Information Disclosure Act and the legislative purport of the information subject to non-disclosure under 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 the case where there is a high probability that fair performance of duties would considerably interfere with the fair performance of duties if disclosed, in light of the purpose of the information disclosure system under Article 1 of the Information Disclosure Act and the legislative purport of the information subject to non-disclosure under Article 9(1)5 of the Information Disclosure Act. Whether such case falls under such a case shall be carefully determined based on specific matters by comparing and comparing the interests protected by non-disclosure, such as the fairness of duties, etc.,

[5] "Management and trade secrets of corporations, etc." under Article 9 (1) 7 of the Official Information Disclosure Act (hereinafter "Information Disclosure Act") mean all information on business activities that are advantageous to the disclosure of others or all confidential information on business activities that are advantageous to the disclosure of others, and whether to disclose such information shall be determined depending on whether there exists a legitimate interest to refuse disclosure. The existence of such legitimate interest shall be determined strictly in light of the legislative intent of the Information Disclosure Act.

[1] Article 1 and Article 9(1)4 of the Official Information Disclosure Act / [2] Article 27 of the Administrative Litigation Act / [3] Article 27 of the Administrative Litigation Act / [3] Article 27 of the Administrative Litigation Act, Article 9(1)4 of the Official Information Disclosure Act / [4] Article 9(1)5 of the Official Information Disclosure Act / [5] Article 9(1)7 of the Official Information Disclosure Act

[2] Supreme Court Decision 91Nu3895 decided Feb. 14, 1992 (Gong1992, 1046), Supreme Court Decision 2009Du15586 decided Nov. 26, 2009 (Gong2010Sang, 48) / [4] Supreme Court Decision 2002Du12946 decided Aug. 22, 2003 (Gong2003Ha, 1958), Supreme Court Decision 2010Du2913 decided Jun. 10, 2010 (Gong2010Ha, 1378) / [5] Supreme Court Decision 2007Du1798 decided Oct. 23, 2008

Economic Reform Co., Ltd and one other (Attorney Kim Young-hee, Counsel for the plaintiff-appellant)

Financial Services Commission Chairperson and one other (Government Law Firm Corporation, Attorneys Seo Young-young et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2009Nu4823 decided September 23, 2009

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

The grounds of appeal are examined.

1. We examine whether information constitutes information subject to non-disclosure under Article 9(1)4 of the Official Information Disclosure Act (hereinafter “Information Disclosure Act”).

Article 9(1)4 of the Information Disclosure Act provides that “information related to a pending trial” shall be subject to non-disclosure in order to ensure citizens’ right to know and secure citizens’ participation in state affairs and transparency in the management of state affairs, by prescribing matters necessary for the citizen’s request for disclosure of information held and managed by a public institution and the public institution’s duty to disclose information. In light of the legislative purpose of the Information Disclosure Act, the principle of disclosure of information, and the form and purport of the above provision, etc., in order to prevent damage to the judicial action of the State, such as the independence and fairness of trial, the information pertaining to a pending trial should be subject to non-disclosure. Considering the legislative purpose of the Information Disclosure Act, the principle of disclosure of information subject to non-disclosure, and the above provision form and purport, a public institution other than the court does not necessarily have to be included in the records of trial in which the information is in progress, but it is reasonable to deem that all information related to the trial

Based on the reasoning of the judgment of the court of first instance, the court below held that, with regard to the approval of excess holding limit for the same person of Lone Star as of September 26, 2003 by the Financial Services Commission, the three information at the time of original adjudication (hereinafter “three information at the time of original adjudication”), such as “data on the same person, etc. submitted by Lone Star side,” “the approval proposal for acquisition of stocks of the Korea Exchange Bank against Lone Star”, “the approval proposal for acquisition of stocks of the Korea Exchange Bank against Lone Star” from the end of December 2003 to the end of June 206, and “the same person, etc. submitted by Lone Star side” and “the examination report by the Financial Supervisory Service, etc.” (hereinafter “three information at the time of original adjudication”), do not constitute “information related to the trial under progress,” which is subject to non-disclosure under Article 9(1)4 of the Information Disclosure Act, in light of the following:

The judgment of 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 meaning or inclusion of information subject to non-disclosure under the above provisions

2. In an appeal seeking the revocation of an administrative disposition, the agency may add or change other grounds only to the extent that the basic factual relations are deemed identical to those of the original disposition, and the existence or absence of such basic factual relations is determined based on whether the relevant basic social factual relations are identical in a basic point of view by taking advantage of the specific facts before the grounds for disposition are legally assessed. Thus, it cannot be deemed that the initial grounds for disposition exist on the ground that the additional or modified grounds existed at the time of the disposition, or that the relevant party was aware of such facts (see Supreme Court Decisions 91Nu3895, Feb. 14, 1992; 2009Du15586, Nov. 26, 2009, etc.).

Based on the reasoning of the judgment of the court of first instance, inasmuch as the Defendants stated that the information No. 3 at the time of original adjudication on the grounds of the disposition of this case is information related to the trial in progress under Supreme Court No. 2007Du11412, the court below determined that the Defendants’ additional assertion of the grounds of disposition of this case constitutes information related to the trial in progress at the Seoul Central District Court 2006Rahap (Case No. 1, 2, and 3 omitted), which is entirely separate from the above Supreme Court case, constitutes information related to the trial in this case, which is entirely separate from the original adjudication of this case, is not permissible since it added the grounds for original disposition and basic

The judgment of 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 permission of additional disposition grounds, and there is no evidence to prove that the plaintiffs consented to the addition of disposition grounds in the record. Thus, the ground of appeal that the court below’s measure which did not permit the addition of disposition grounds is unlawful on the premise that such consent was obtained, is not affected by

3. “Information, if disclosed, which has considerable grounds to believe that the fair performance of duties would be significantly impeded” under Article 9(1)5 of the Information Disclosure Act refers to information that is highly probable that fair performance of duties would substantially interfere with the fair performance of duties if disclosed 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. Whether such a case constitutes information shall be determined carefully in accordance with specific cases by comparing and comparing the interests protected by non-disclosure such as fairness in the performance of duties and the interests of guaranteeing citizens’ right to know, guaranteeing citizens’ participation in government affairs, and securing transparency in government affairs (see, e.g., Supreme Court Decisions 2002Du12946, Aug. 22, 2003; 2010Du2913, Jun. 10, 2010).

According to the reasoning of the judgment of the court below and the court of first instance as cited by the court below, the court below determined that: (a) disclosure of information set forth in the judgment of the court below was not likely to seriously obstruct the fair performance of the "ex officio revocation of the above disposition of approval of excess holding of stocks of Lone Star; (b) approval of excess holding limit on the same person for Lone Star's stocks which was already completed at the time of the disposition of this case; (c) disclosure of information set forth in the judgment of the Financial Services Commission from the end of December 2003 to the end of June 2006; and (c) disclosure of information set forth in subparagraph 1 of Article 5 of the Information Disclosure Board Act could not be deemed to contribute to the realization of citizens' right to know about the performance of duties by the Financial Services Commission and securing transparency and transparency in the performance of duties by the Financial Services Commission.

The judgment of 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 meaning or inclusion of information subject to non-disclosure under the above provisions

4. According to the reasoning of the lower judgment, the lower court determined to the effect that the disclosure of information No. 5 (hereinafter “No. 5 information in the first instance judgment”) in the first instance trial, including “data on the same person’s status, etc. submitted by the side of the Tea dial-a-a-a-the-counter trading business” and “a proposal to approve the acquisition of stocks of one bank against the Tea dial-a-a-the-counter trading business” in relation to the approval of excess stock holding limit for the acquisition of stocks by one bank by the Financial Services Commission on May 28, 2004, does not constitute information that has considerable grounds to believe that such disclosure would seriously interfere with the fair performance of financial supervisory duties

Therefore, the court below did not err by omitting judgment as to the relevance of information subject to non-disclosure under Article 9 (1) 5 of the Information Disclosure Act, such as the ground of appeal on this part.

5. "Management and trade secrets of a corporation, etc." under Article 9 (1) 7 of the Information Disclosure Act mean all information about business activities that are advantageous to the disclosure of others or all confidential information about business activities. Whether such information is disclosed or not shall be determined depending on whether there is a legitimate interest to refuse disclosure. Whether such legitimate interest exists shall be determined strictly in light of the legislative intent of the Information Disclosure Act (see, e.g., Supreme Court Decisions 2007Du1798, Oct. 23, 2008; 2008Du1392, Dec. 23, 2010).

With reference to the reasoning of the first instance judgment, the lower court determined that the information No. 3 was not subject to non-disclosure under Article 9(1)7 of the Information Disclosure Act, on the ground that, upon citing the reasoning of the first instance judgment, it could not be deemed that the disclosure of the information would seriously undermine the legitimate interests of Lone Star or dial-a-a-the-art trading, etc., if it was made public, on the ground that: (a) the confidential information about the business activities of Lone Star et al. was included in the information No. 5, including Lone Star; (b) the confidential information about the business activities of Lone Star et al. was partially included in the information No. 5 at the time of the first instance judgment; (c) in light of the fact that each of the above information was based

The judgment of 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 meaning or inclusion of information subject to non-disclosure under the above provisions

6. Therefore, all appeals are 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 Yang Chang-soo (Presiding Justice)