(영문) 대전지방법원 2013.2.6.선고 2012구합2025 판결

1. On July 14, 201, the Defendant’s participation in correctional officers’ meetings and hearing records of the contents of meetings with respect to the Plaintiff. The Defendant’s disposition to designate a prisoner subject to recording and video recording shall be revoked.

2. The costs of the lawsuit shall be borne by the defendant.

Purport of claim

The order is as set forth in the text.

Reasons

1. Details of the disposition;

A. On May 28, 2009, the Plaintiff was sentenced to 7 years of imprisonment due to a violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) and 1 year of imprisonment due to a violation of the Public Official Election Act. The Plaintiff is a prisoner who is confined to a astronomical prison from July 14, 201 to a astronomical prison.

B. On July 14, 201, the Defendant designated the Plaintiff as a prisoner subject to the participation of correctional officers in meetings and listening to the content of meetings (hereinafter “instant disposition”). From July 16, 2011, when the Plaintiff’s first meeting was made according to the instant disposition, the Defendant participated in the correctional officer and listen to, record, recording, and video recording of the details of meetings without the Defendant’s separate instruction until then, even if the Plaintiff’s meeting was conducted without the Defendant’s separate instruction.

[Ground of recognition] Unsatisfy, Gap evidence No. 13, Eul evidence No. 5 (including branch numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. Determination on this safety defense

A. The Defendant’s defense of this case (1) recording and video recording of a correctional officer’s participation in meetings and listening to the contents of meetings are not an administrative disposition subject to a revocation lawsuit as a factual act, and there is no benefit to seek revocation thereof since the participation of a correctional officer and listening to the contents of meetings had already been conducted in the past. (2) On July 16, 201, a correctional officer Kim 00 who belongs to a astronomical prison notifies the Plaintiff that the Plaintiff is subject to the Plaintiff’s participation in the recording, video recording, and video recording of the contents of meetings. Around July 18, 2011, the instant lawsuit is unlawful as it was filed with the lapse of the filing period.

B. Determination

(1) As to the disposition of the instant case and the interest in the lawsuit

The defendant asserts to the effect that the above act is nothing more than a factual act and there is no benefit to seek cancellation of the past factual act under the premise that the plaintiff's participation in each correctional officer's meeting and listening, recording, recording, recording, and video recording of the contents of the meeting. However, the defendant stated that the defendant stated that "the defendant's participation in the meeting of the plaintiff and the cancellation of the correctional officer's participation in the meeting is revoked," and that the defendant stated that "the defendant stated in the column of the claim of the complaint "the recording and video recording of the contents of the meeting of the plaintiff and the disposition of the correctional officer's participation in the meeting of the plaintiff is revoked," and that the plaintiff does not seek cancellation of the defendant's participation in the prison officer's meeting and hearing, recording, recording, video recording of the contents of the meeting, and there is no benefit to seek cancellation of the defendant's participation in each meeting and hearing and video recording of the contents of the meeting. Thus, it is reasonable to view that the plaintiff does not seek cancellation of the defendant's action on all other grounds of this case.

(2) Article 20 (1) of the Administrative Litigation Act provides that "the revocation lawsuit must be filed within 90 days from the date when the person becomes aware of the disposition, etc." as to whether the period of filing a lawsuit has expired.

With respect to the instant case, it is not sufficient to recognize the Defendant’s assertion that a prison officer Kim 00, and Yang 00, who belongs to the Incheon Prison, notified the Plaintiff of the instant disposition on July 16, 201, around July 18, 201, only on the sole basis of the statement of No. 5, written evidence No. 5, and there is no other evidence to acknowledge otherwise.

Rather, Article 24(1) of the Administrative Procedures Act provides that when an administrative agency takes a disposition, it shall be done in writing, except as otherwise provided for in other Acts and subordinate statutes: Provided, That if it is necessary to process the case promptly or if a matter is insignificant, an administrative agency can do so by oral or other means; and Article 23(1) of the same Act provides that if a disposition is a simple and repetitive disposition or minor disposition that recognizes its reasons as it is, an administrative agency shall present the grounds and reasons to the party when it takes such a disposition, unless it is necessary to take such a disposition urgently; Article 26 of the same Act provides that an administrative agency may file an administrative appeal and administrative litigation with the party, whether the request period and request period, and other necessary matters. Article 41(3) of the Administration and Treatment of Correctional Institution Act provides that the court shall inform the other party of the fact that there was an interview with the party in question, and that the court shall inform the other party of the fact in advance, such as an interview with the party in question, and the court shall inform the other party of the fact.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

Although the Plaintiff’s meeting does not fall under the case where a prisoner’s meeting can be recorded and video-recording the contents of meeting under the Act on the Execution of Punishment, the Defendant uniformly participated in the Plaintiff’s meeting and recorded and video-recording the contents of meeting. The instant disposition is an unconstitutional disposition that infringes on the Plaintiff’s fundamental rights, and thus, should be revoked.

B. Relevant statutes

The provisions of the attached Table shall be as specified in the statutes.

C. Determination

Article 41 (2) of the Criminal Procedure Act provides that when there is a concern that a warden may destroy evidence of a crime or conduct an act contrary to criminal law, when it is necessary for edification of a prisoner or his/her sound rehabilitation into society, when there is a reason that it is necessary for the maintenance of security and order of a correctional institution, a correctional officer may have a correctional officer listen to and record or record the contents of meetings of a prisoner, and Article 62 (1) of the Enforcement Decree of the same Act provides that a warden may have a correctional officer participate in meetings of a prisoner except an unconvicted prisoner who meets with a defense counsel for the hearing records under Article 41 (2) of the same Act.

As seen above, the Act on the Execution of Punishment stipulates that the contents of meeting of prisoners shall be listened to, recorded, recorded, and recorded exceptionally, and a correctional officer may participate in the meeting. The Act on the Execution of Punishment and the Enforcement Decree thereof also designates a specific prisoner as a person subject to measures to restrict general and comprehensive meeting over a long-term period, and thus allowing a correctional officer to participate in the meeting and listen to the contents of the meeting at any time and to record and video record the contents of the meeting, despite the absence of any reasonable provision allowing a correctional officer to participate in the meeting and listen to the contents of the meeting, the Defendant’s disposition of this case by the Plaintiff is designated as a person subject to regular and general participation of the correctional officer and listening to the contents of the meeting during the period of confinement, regardless of the other party to the meeting, and thus restricting the Plaintiff’s freedom of meeting, who is a prisoner, beyond the scope stipulated by the Act, regardless of the other party to the meeting. Thus, the disposition of this case cannot be exempted from the revocation of the disposition without any ground.

In regard to this, the defendant argued that the correctional officer needs to participate in the plaintiff's interview and record and record the contents of the interview in order to maintain the safety and order of the facility in accordance with Article 41 (2) 3 of the Punishment Execution Act on the ground that the past reporter's status belongs to the plaintiff and the fostering of the plaintiff confined to the astronomical prison occurred in the news as a result of the interview with the plaintiff. However, the above case is that the correctional officer participated in all meetings of the plaintiff and the contents of the interview are heard and recorded.

It is not only a case that occurred after the commencement of afforestation, but also it is difficult to see that the case falls under the category of "when it is necessary to maintain the security and order of the facility" under Article 41 (2) 3 of the Criminal Execution Act, which can hear, record or video record the contents of meeting of prisoners only for the reasons asserted by the defendant.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified and it is so decided as per Disposition.