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(영문) 헌재 2016. 4. 28. 선고 2012헌마549 2013헌마865 공보 [형의 집행 및 수용자의 처우에 관한 법률 제112조 제3항 위헌확인 등]
[공보(제235호)]
Main Issues

A. Whether Article 108 subparag. 11 of the Administration and Treatment of Correctional Institution Inmates Act (wholly amended by Act No. 8728, Dec. 21, 2007; hereinafter “Punishment Execution Act”) which applies to unconvicted prisoners in the main sentence of Article 112(3) of the same Act (hereinafter “Article 108 subparag. 11 of the same Act”) and Article 12 subparag. 12 of the same Act (hereinafter “Article 108 subparag. 12 of the Restriction on Receipt and Receipt of Correspondence”) and subparag. 9 of the same Act (hereinafter “Article 112 subparag. 9 of the Restriction on Communications”) violate the requester’s freedom of communication during the period of prohibition (negative)

B. Whether Article 108 subparag. 10 of the Criminal Procedure Act, which applies to unconvicted prisoners, subject to a disposition of forfeiture of rights, to restrict writing during the period of forfeiture of rights, infringes on the freedom of expression by the requester (negative)

(c)The books in subparagraphs 5 and 7 of Article 108, which apply to unconvicted prisoners in the main sentence of Article 112, Paragraph 3, of the Punishment Execution Act (hereinafter referred to as “Article 108, Paragraph 5, of the Restriction on Access to Newspapers of this case”) imposing restrictions on unconvicted prisoners’ access to newspapers and their own purchases at their own expense during the period of forfeiture;

Whether the part concerning the restriction on the perusal of books of this case (hereinafter “the restriction on the perusal of books of this case”) infringes on the claimant’s right to know (negative)

D. Whether the head of the ○○ detention center’s act of keeping the requester in custody using CCTV (hereinafter “the CCTV security”) infringes on the requester’s privacy and freedom (negative)

E. Whether the head of the ○○ prison or ○○ detention center notifies the competent court of the grounds for and details of disciplinary measures against the claimant as reference materials for sentencing (hereinafter “instant notification”) violates the principle of statutory reservation and the principle of excessive prohibition, thereby infringing the claimant’s right to self-determination of personal information (negative)

Summary of Decision

A. The restriction of correspondence, interview, and telephone conversation to an unconvicted prisoner subject to a disposition of forfeiture of rights is intended to maintain the safety and order in a confinement facility by putting him/her up against the confinement and escape from custody. In cases of meeting and correspondence, the head of a correctional institution exceptionally allows the restriction of fundamental rights, if deemed necessary for the protection, etc. of prisoners’ rights, etc. In cases of telephone conversations, the aforementioned exception is not provided, but the need to restrict the freedom of telephone conversations of unconvicted prisoners in terms of fear of destruction of evidence, etc. Furthermore, since a person subject to a disposition of forfeiture of rights commits an act that violates the security and order of confinement facilities, and an act that is deemed most serious among them, it is difficult to view that it is excessive even if a person subject to the disposition of forfeiture of rights uniformly prohibits telephone conversations during the period of forfeiture of rights. Accordingly, the provision on the restriction of correspondence, meeting, and telephone conversation of this case does not infringe on the freedom of communications of an unconvicted prisoner.

B. The instant provision on the restriction of writing is recognized as appropriate for the purpose of forcing an unconvicted prisoner subject to a disposition of forfeiture to comply with the rule by imposing disadvantage of writing restriction and maintaining the safety and order of confinement facilities. In light of the fact that the head of a correctional institution deems it particularly necessary for the protection of prisoners’ rights, an exception is prescribed to allow writing, and Article 85 of the Criminal Procedure Act provides that an unconvicted prisoner’s right in investigation and trial process, such as the preparation of litigation documents, etc. during the execution of disciplinary action, is guaranteed, it is difficult to view that the said provision excessively limits an unconvicted prisoner’s freedom of expression.

C. Restrictions on the perusal of newspapers and their self-purchaseed books during the period of a set order, along with a disposition of forfeiture on the violation of discipline by unconvicted prisoners, are to urge the violators to reflect, warn the general public to disadvantage the violation of discipline, thereby inducing them to observe the rules of confinement, and ultimately establishing the order of confinement. The provision on the restriction of newspaper and reading of books in this case does not include the books kept in the accommodation facility for a period of up to 30 days, not for a maximum of 30 days, but for the subject subject to the prohibition of perusal. Therefore, it is difficult to view that the said provision excessively limits the applicant’s right to know.

D. The head of the ○○ detention center installed CCTVs that cannot be expanded or closely taken in order to minimize restrictions on the protection and freedom of privacy of prisoners, as prescribed by the Punishment and Execution Act, etc., and installed CCTVs that cannot be used to minimize the restriction on the privacy of prisoners. The head of the ○○ detention center attached a paper of the lusive material to the hold of the toilet, and took measures, such as implementation of a video system operation plan to prevent unauthorized outflow of the recorded video information. In the event of an emergency in the reality where it is impossible to secure human resources to be exposed at all times in the correctional institution, it is difficult to find any other effective means than the safe guard using CCTV in order to promptly identify the emergency situation and implement emergency measures. Furthermore, accidents such as suicide and self-harm in the correctional institution may have a significant negative impact on the prisoners themselves and other prisoners, and it is highly necessary to prevent this from being excessive. Accordingly, it cannot be deemed that the CCTV safe guard of this case is excessively limited to the applicant’s privacy and freedom of privacy.

(e)(i)Opinioned opinions of the Justice Lee Jong-tae, Justice Lee Jong-tae, Justice Kim Jae-soo, Justice Lee Jin-tae, and Justice Clerks;

Article 115(3) of the Punishment Execution Act, which provides that "necessary matters concerning punishment" shall be prescribed by Ordinance of the Ministry of Justice, does not explicitly mention the notification of materials about sentencing reference, nor does it predict that this provision alone can make the notification of this case, which is an independent restriction on fundamental rights. Thus, Article 115(3) of the Punishment Execution Act cannot be a legal basis for the notification of this case.

Personal information on prisoners' acts subject to disciplinary action and the disciplinary action therefor shall be to secure confinement order in a correctional institution.

Since it is difficult to view it as being provided within the scope of its original purpose, Article 15(1)3 and Article 17(1)2 of the Personal Information Protection Act cannot be a basis legal provision. Furthermore, the act of notification in this case may be deemed as being provided as “where it is necessary for the court to conduct judicial affairs” as provided by Article 18(2)8 of the Personal Information Protection Act. However, the said provision is merely a provision allowing the court to provide personal information in accordance with the court’s direction, and it does not allow the detention center head, etc. to provide personal information actively and voluntarily without the court’s request. In addition, the respondent does not take measures to give public notice in the Official Gazette, etc. or to ensure the safety of personal information.

Therefore, the notification of this case violates the principle of statutory reservation, thus infringing the right of self-determination of the claimant.

(2) An opinion to dismiss a judge or a judge's assistant;

(A) Although Article 115(3) of the Criminal Procedure Act does not clearly and specifically stipulate the act of notifying reference data for sentencing, it can be found that the Personal Information Protection Act as a general law on the protection of personal information provides the basis for the act of notifying this case.

In addition to preparing materials on disciplinary action against unconvicted prisoners, the head of a correctional institution’s notification to the court is also intended for the duties of the correctional institution’s security and maintenance of order. Thus, the notification of this case to a third party may be deemed to have been provided to the third party within the scope of collection purpose based on Article 17(1)2 of the Personal Information Protection Act. Even if not, the notification of this case may be deemed to have been based on Article 18(2)8 of the Personal Information Protection Act, which provides that the third party may provide personal information for any purpose other than collection purpose if necessary for the performance of judicial affairs. It is not reasonable to deem that the notification of this case can be provided only when requested by the court, such as the quoted opinion, and even if the respondent did not take measures under Article 18(4) or (5) of the Personal Information Protection Act, the issue

Therefore, it is difficult to view the instant notification as restricting the claimant’s right to self-determination of personal information without legal basis.

(b)The instant notifications are aimed at maintaining the safety and order in the correctional institution and realizing adequate sentencing for unconvicted prisoners, and their legitimacy and means are recognized as appropriate.

The content of personal information provided by the instant notification act is difficult to be considered as information closely related to an individual’s personality or secret private domain, and thus, it does not fall under the subject of strict protection. The scope of the right to self-determination of personal information which an unconvicted prisoner may enjoy in relation to a court that is the subject of arrest or detention is limited, and the requirements for minimum infringement are also satisfied in that the measures for the protection of personal information are provided in the relevant statutes.

Considering the nature of the information provided due to the instant notification act or the limited scope of the other party to the provision thereof, the public interest to be achieved by the instant notification act is much larger than that of the other party to the provision thereof. As such, the requirements for balance of legal interests were also satisfied.

Ultimately, the notification of this case violates the excessive prohibition principle, and thus, it cannot be said that the claimant's right to self-determination of personal information was infringed.

(3) Opinion by Justice Kim Chang-soo and Justice Cho Jae-ho

In this case, the claimant is arguing only the disadvantage in sentencing in his criminal trial, and the personal information is not known itself. Thus, the fundamental right restricted by the notification act of this case should be regarded as the right to a fair trial.

The notification of this case is merely an internal factual act between state agencies, and it is difficult to recognize the exercise of public authority, since the notification of this case is not an act that causes a direct legal effect on the legal status, rights and duties of the claimant in a superior position.

Since the judgment on sentencing in a criminal trial is the exclusive authority of the judge, the issue of whether to refer to the contents notified by the act of notification in this case to the sentencing depends on the discretion of the judge, and the act of notification in this case does not have any binding force in relation to the relation to the court. Therefore, the act of notification in this case does not directly result in the claimant’s disadvantage in sentencing.

Ultimately, the notification of this case does not fall under the exercise of public authority, which is the object of constitutional complaint, and thus, a request for adjudication is unlawful.

(4) As to the instant notification act, five Justices did not reach the quorum for the trial for the decision of acceptance as stipulated in Article 113(1) of the Constitution and Article 23(2)1 of the Constitutional Court Act, and thus, render a decision of rejection.

Dissenting Opinion as to the provision on the limitation to writing of this case by Justice Lee Jong-Un, Justice Kim Jong-soo, Justice Lee Jin, Justice Lee Jin-sung, and Justice Kang Jong-

As stated in the Dissenting Opinion of the Decision 2012Hun-Ma623, writing acts themselves are personal acts related to mental activities, not acts that may cause any danger to the maintenance of the order and safety of accommodation facilities, and writing acts that are prohibited from violating the regulation of accommodation facilities are very rare in terms of their content. Compared to the freedom of expression, writing acts are not necessarily premised on external dissemination of the said expressive materials. As such, in comparison with the freedom of ordinary expression, the following is located far above the freedom of conscience and ideas or human dignity and value as human beings. However, the effect of punishment following the restriction of writing acts is very large, such as the restriction of writing acts is very large depending on the person’s ability or there is a limit to human memory, and thus, they may be achieved through other means such as permitting the safety and order of accommodation facilities to the public interest of maintaining the safety and order of accommodation facilities, and exceptional methods, etc. Therefore, the restriction provisions in this case violate the principle of proportionality and the principle of balance between the claimant and the freedom of expression.

Dissenting Opinion as to the provision on the restriction on access to the Examination of this case by Justice Kim Jong-soo, Justice Lee Jin-hun, and Justice Kang Il-il

A prisoner subject to a disposition of forfeiture is not only limited to telephone conversations, correspondence, and interview, but also limited to television viewing or radio listening. If a restriction is placed on reading newspapers, a prisoner subject to a disposition of forfeiture of forfeiture of forfeiture of forfeiture of forfeiture of forfeiture of forfeiture of forfeiture of forfeiture of forfeiture of forfeiture of forfeiture of forfeiture of forfeiture of Rights cannot be seen as infringing upon the essential part of the right to know, which is a very important fundamental right for the realization of democracy, even if a period of forfeiture of forfeiture of forfeiture of forfeiture of forfeiture of forfeiture of forfeiture of forfeiture of forfeiture of Rights, can be perused upon expiration of the period of forfeiture of forfeiture of forfeiture of forfeiture of Rights. To read newspapers is an act that does not pose a risk of maintaining the order and safety of a correctional institution only when an appropriate measure is taken, such as deletion of a part related to an individual’s mental activities. Rather, a prisoner’s sound mental activities may be prepared for return to society in the future, and a prisoner’s sound mental activities may also contribute to correction or edification. Nevertheless, restricting reading of newspapers by reason of violating the legislative purpose of the correctional institution, even in light of the legislative purpose.

Documents subject to adjudication;

Part concerning books under subparagraphs 5 and 7 of Article 108, which apply to unconvicted prisoners under Article 112 (3) of the Administration and Treatment of Correctional Institution Inmates Act (wholly amended by Act No. 8728 of Dec. 21, 2007), and those concerning books under subparagraphs 5, 9, 10, 11, and 12 of the same Article, which apply to unconvicted prisoners.

[Reference Provisions]

Articles 10, 17, 18, 21 and 37(2) of the Constitution of the Republic of Korea

Articles 94, 108, the proviso to Article 112(3), and Article 115 of the Administration and Treatment of Correctional Institution Inmates Act (wholly amended by Act No. 8728, Dec. 21, 2007)

Articles 15(1)3 and 17(1)2 of the Personal Information Protection Act (Amended by Act No. 10465, Mar. 29, 201)

Article 18(1), (2)7, and 8 of the Personal Information Protection Act (Amended by Act No. 11990, Aug. 6, 2013)

Article 235 of the Enforcement Rules of the Administration and Treatment of Correctional Institution Inmates Act (amended by the Ordinance of the Ministry of Justice No. 655 on December 19, 2008)

Reference Cases

A. Constitutional Court Decision 2002Hun-Ma478 on December 16, 2004; Supreme Court Decision 16-2Ha, 548, 560-562 Hun-Ma69 on May 26, 2005; Supreme Court Decision 17-1, 734, 74-Hun-Ma623 on August 28, 2014; Supreme Court Decision 26-2, 381, 390-391 Hun-Ba on February 26, 2015; Supreme Court Decision 2012Hun-Ba435 on May 26, 2005; Supreme Court Decision 2002Hun-Ma699 on May 26, 2005; Supreme Court Decision 17-1, 88, 97

B. Constitutional Court Decision 2012Hun-Ma623, August 28, 2014; Supreme Court Decision 26-2, 381, 388-390

C. Constitutional Court Decision 2009Hun-Ma99 on October 29, 2009; 157, 2096, 2097-2098 Constitutional Court Decision 2008Hun-Ma638 on October 28, 2010; 22-2Ha, 216, 227

(d) Constitutional Court Decision 2010Hun-Ma413 on September 29, 201, Supreme Court Decision 23-2Sang, 726, 731-734

(e) 194. 6. 8 89Hun-Ma35, 6-1, 462, 48-48 Hun-Ma2, 97 Hun-1, 11-1, 17-8 Hun-Ma137, 11-1, 653, 653, 200Hun-Ma2, 208 Hun-1, 208 Hun-1, 208 Hun-Ma64, 201, 208 Hun-Ma2, 208 Hun-1, 205 Hun-1, 206, 208 Hun-Ma36, 201 Hun-Ma2, 205 Hun-Ma64, 208 Hun-Ma2, 204, 205 Hun-1, 206 Hun-1, 205 Hun-1, 2002

Parties

Cheong-gu Human Rights Council Attorney Seo-won (2012Hun-Ma549), Kim Jong-dae (2013Hun-Ma865), Gu Human Rights Council (2013Hun-Ma865)

Head of ○○ Prison (2012Hun-Ma549), Head of ○○ Detention House (2013Hun-Ma865)

Text

All of the instant appeals are dismissed.

Reasons

1. Summary of the case;

(a) Cases 2012Hun-Ma549:

(1) On June 4, 2012, when an appellant was detained under a suspicion of violation of the Act on the Control of Narcotics, Etc., and was detained in the ○○ Prison, the applicant was subject to disciplinary action on June 12, 2012 on the ground that he/she obstructed a correctional officer’s duties, such as verbal abuse, and obstructed a correctional officer’s duties.

(2) On June 12, 2012, the head of the Defendant’s ○○ Prison imposed a restriction on treatment under subparagraphs 4 through 13 of Article 108 of the Administration and Treatment of Correctional Institution Inmates Act (amended by Act No. 8728, Dec. 21, 2007; hereinafter “Punishment Execution Act”) upon the petitioner pursuant to Article 112(3) of the Administration and Treatment of Correctional Institution Inmates Act (amended by Act No. 8728, Dec. 21, 2007; hereinafter “Punishment Execution Act”).

(3) In addition, on June 20, 2012, the head of the ○○ Correctional Institution reported the petitioner’s violation of the above discipline and the details of the disciplinary measure to the District Court as a reference material for sentencing.

(4) The claimant asserted that Article 112(3) of the Punishment Execution Act, which provides that the requester shall limit the reading of newspapers, purchase of books, telephone conversations, writing, correspondence, and meetings, and that Article 235 of the Enforcement Rule of the Punishment Act, which provides that if an unconvicted prisoner is subject to disciplinary action due to a violation of discipline, it would be against the principle of presumption of innocence, etc., and that Article 235 of the Enforcement Rule of the Punishment Act, which provides that the unconvicted prisoner may notify the competent court, etc. of the details thereof as materials for sentencing reference, infringes on his/her fundamental rights guaranteed by the Constitution during the period of prohibition.

(b) Cases 2013Hun-Ma865;

(1) On September 24, 2013, the applicant was detained under suspicion of violation of the Act on the Control of Narcotics, Etc. at the same time and requested solitary confinement in the ○○ Detention House on September 24, 2013, when being detained, and obstructed the entrance room of other prisoners and was subject to disciplinary action on September 27, 2013 on September 27, 2013 due to suspicion of disturbance.

(2) On September 24, 2013, the head of the ○○ detention center, deeming the risk of secondary correctional accidents as the claimant continued to express the complaints without providing meals in relation to the foregoing case, was admitted to the ward in which closed circuit television (hereinafter “CCTV”) is installed from September 24, 2013 to October 5, 2013, when the period of deposit expires.

(3)In addition, on October 1, 2013, the head of the ○○ detention center for the respondent notified the Busan District Court of the violation of discipline and disciplinary action of the claimant as a reference material for sentencing.

(4) On September 24, 2013 to October 5, 2013, the respondent filed a petition for adjudication on constitutional complaint of this case on December 23, 2013, alleging that the defendant's act of mooring the CCTV from September 24, 2013 to October 5, 2013, notified the Busan District Court of the sentencing reference materials to the claimant's sentencing reference materials infringed upon the dignity and value as a human being guaranteed under the Constitution and the secrecy and freedom of privacy.

2. Object of adjudication;

A. An appellant who is not an attorney-at-law has the effect of a request for adjudication or assertion only when it is ratified by an agent who is an attorney-at-law. Unless there is such ratification, the contents of the request for adjudication before the applicant’s request for adjudication are subject to adjudication (see Constitutional Court Decision 201Hun-Ma307, Oct. 25, 2012). However, the Constitutional Court should examine comprehensively the summary of the claimant’s claim and determine the subject of adjudication ex officio by examining ex officio the fundamental rights infringed upon and the public authority causing the infringement, regardless of the purport of the request stated in the request for adjudication (see Constitutional Court Decision 2008Hun-Ma430, Aug. 23, 2012).

(b) Cases 2012Hun-Ma549:

Article 112(3) of the Criminal Procedure Act and Article 235 of the Enforcement Rule of the Criminal Procedure Act (amended by the Ordinance of the Ministry of Justice No. 655 of Dec. 19, 2008) were written as the subject of adjudication.

However, Article 235 of the Enforcement Rule of the Criminal Procedure Act is a basis provision for the act of notifying the competent court, etc. of materials regarding sentencing reference for sentencing of unconvicted prisoners as to the act subject to disciplinary action. Since the direct nature of infringement of fundamental rights is not recognized, a request for adjudication on constitutional complaint is not clear (see, e.g., Constitutional Court Decision 2015Hun-Ma810, Sept. 1, 2015; Constitutional Court Decision 2015Hun-Ma910, Sept. 22, 2015). Since Article 235 of the Enforcement Rule of the same Act limits the subject of adjudication to “the head of ○○ prison notifies the competent district court of the offense on June 20, 2012,” the above provision of the Enforcement Rule is subject to adjudication, “the head of ○○ prison shall be limited to the act of notifying the applicant to the District Court on June 20, 2012.”

In addition, the claimant and his/her agent are unconvicted prisoners under Article 112(3) of the Punishment of Unconvicted Prisoners Act, such as inspection of newspapers, purchase of books, telephone communications;

Article 112(3) of the Administration and Treatment of Correctional Institution Inmates Act (wholly amended by Act No. 8728, Dec. 21, 2007), which is a part relating to the requester, provides that “the part relating to writing, correspondence, and restriction on meeting” is unconstitutional, and the part relating to the book among subparagraphs 5 and 7 of Article 108, which applies to unconvicted prisoners, shall be limited to subparagraphs 9, 10, 11, and 12 of the said Article.

(c) Cases 2013Hun-Ma865;

In a document submitted by the public representative of the petitioner on March 14, 2014, the head of ○○ detention center used CCTV to keep the petitioner safe guard from September 24, 2013 to October 5, 2013, and the head of ○○ detention center notified the applicant of the sentencing reference materials to Busan District Court on October 1, 2013, and explicitly stated that the contents that the applicant claimed before are excluded from the subject of the trial.

D. Ultimately, the subject of the instant trial is ① the act of keeping custody of the requester using CCTV from September 24, 2013 to October 5, 2013 (hereinafter “the act of keeping custody of CCTV”) (hereinafter “the act of keeping custody of the requester”) under Article 112(3) main text of the Administration and Treatment of Correctional Institution Inmates Act (wholly amended by Act No. 8728, Dec. 21, 2007); ① the act of imposing punishment on the requester to the District Court of the Republic of Korea on June 20, 2012; ② the act of notifying the requester of the following materials regarding the act of giving notice of violation of fundamental rights of the requester to the Busan District Court (hereinafter “the act of giving notice of violation of fundamental rights of the requester”).

【Provisions Subject to Adjudication】

Administration and Treatment of Correctional Institution Inmates Act (wholly amended by Act No. 8728, Dec. 21, 2007)

Article 112 (Execution of Disciplinary Action) (3) Any restriction on treatment under subparagraphs 4 through 13 of Article 108 shall be imposed concurrently on a person subject to a disposition under subparagraph 14 of Article 108 during the said period.

[Related Provisions]

Administration and Treatment of Correctional Institution Inmates Act (wholly amended by Act No. 8728, Dec. 21, 2007)

Article 108 (Types of Disciplinary Action) Types of disciplinary action are as follows:

5. Restriction on reading newspapers for up to 30 days;

7. Restriction on using the goods purchased at his/her own expense for not more than 30 days (excluding medicines prescribed by a doctor for medical treatment);

9. Restriction on telephone conversations for not more than 30 days;

10. Restriction on writing for up to 30 days;

11. Restriction on correspondence for not more than 30 days;

12. Restriction on visitation for not more than 30 days;

14. Bailment for not more than 30 days;

Article 12 (Execution of Disciplinary Measures) (3) Any restriction on treatment under subparagraphs 4 through 13 of Article 108 shall be imposed concurrently on a person subject to a disposition under subparagraph 14 of Article 108 during the said period: Provided, That if deemed especially necessary for the remedy against infringement of rights of prisoners, edification of convicted prisoners or sound rehabilitation into society, any warden may permit writing, correspondence, meeting, or outdoor exercise.

Enforcement Regulations of the Administration and Treatment of Correctional Institution Inmates Act (amended by the Ordinance of the Ministry of Justice No. 655 on December 19, 2008)

Where the warden imposes a disciplinary punishment on unconvicted prisoners, he/she may prepare reference materials for sentencing concerning the relevant acts subject to the disciplinary punishment, etc. and notify them to the public prosecutor of the competent public prosecutor's office or the competent court.

Other relevant provisions [Attachment]

3. The claimant's assertion;

A. The legal provision of this case violates the presumption of innocence by limiting the same treatment of unconvicted prisoners as the final and conclusive punishment, thereby infringing on the right to equality and the right to fair trial of unconvicted prisoners, and infringes on the freedom of communication and the right to know, etc. contrary to the principle of excessive prohibition.

B. The CCTV security act in this case goes beyond the minimum necessary scope and infringes upon the applicant’s privacy and freedom of privacy.

C. The instant notification causes disadvantages to unconvicted prisoners in sentencing in a criminal trial by notifying an unconvicted prisoner of the violation of discipline within the correctional institution and the disciplinary disposition resulting therefrom to the court without delegation of any law. The instant notification excessively infringes on the dignity and value of the requester, who is an unconvicted prisoner, and the freedom of privacy.

4. Determination

(a) Status, disciplinary action, etc. of unconvicted prisoners;

(1) Legal status of unconvicted prisoners and restriction on their fundamental rights

According to Article 2 subparagraph 2 of the Criminal Procedure Act, "unconvicted prisoner" means a criminal suspect or a criminal defendant arrested or subject to execution of a warrant of detention.

The purpose of detention is to achieve the purpose of detention, i.e., the prevention of escape and destruction of evidence, and the control to maintain the safety, because prisoners detained in the correctional institution are forced community life in an isolated facility.

As a result, it is inevitable to restrict fundamental rights, such as physical freedom guaranteed by the Constitution. However, such restriction is limited to cases necessary for national security, maintenance of order, or public welfare as stipulated under Article 37(2) of the Constitution. In particular, the restriction on freedom and rights of unconvicted prisoners presumed not to be acquitted need to be mitigated as much as possible compared to the convicted prisoners on whom imprisonment, etc. was sentenced and the relevant punishment became final and conclusive. The restriction on freedom and rights of unconvicted prisoners presumed not to be acquitted should not exceed the minimum reasonable scope necessary to prevent escape and evidence destruction and to maintain regulations and safety within the facility (see Constitutional Court Decision 201Hun-Ma623, Aug. 28, 2014; Constitutional Court Decision 200Hun-Ma546, Jul. 19, 201).

(2) Disciplinary action under the Execution of Punishment Act

Article 105(1) of the Criminal Procedure Act provides that a disciplinary measure shall be imposed on a person who violates the relevant provision to ensure the security and order of a correctional institution (a correctional institution, a detention house, a juvenile prison, and its branches) (Article 107). Since a correctional institution is a place to which a prisoner is forced to be confined, it is highly necessary to maintain order and security in the institution, and the disciplinary measure under the Criminal Procedure Act is imposed on a person who has already been placed under disadvantage, such as pre-trial detention for the purpose of securing investigation and trial procedures, etc., it is anticipated that the disadvantage as a sanction for a violation of the relevant provision would be more restrictive than the disadvantage that is ordinarily included in the penal punishment and is ordinarily confined to the disadvantage that is ordinarily confined to the life of confinement and confinement (see Constitutional Court en banc Decision 203Hun-Ma289, Feb. 24, 2005; Constitutional Court en banc Decision 2012Hun-Ma623, Aug. 28, 2014).

The Criminal Procedure Act does not specifically distinguish between the unconvicted prisoner and the convicted prisoner in imposing and executing the disciplinary action: Provided, That Article 79 of the same Act provides that even in cases where the unconvicted prisoner is investigated as a person subject to disciplinary action or is under execution of the disciplinary action, the preparation of litigation documents, meetings and correspondence with his/her defense counsel, and the exercise of rights in the course of investigation and trial shall be guaranteed (Article 85).

(3) Restrictions on treatment during the period of time of the forfeiture or forfeiture;

Pursuant to the Enforcement Rule of the Punishment Act, where an act, etc. has been committed in conflict with the Criminal Act, the Punishment of Violences, etc. Act, and other criminal Acts, the term “an act, etc.” (Article 215 subparag. 1), the term “an act, etc. to punish another person or to make a false report, etc. for the purpose of interfering with a correctional officer’s performance of duties, such as a ban for at least 16 days but not more than 20 days (Article 215 subparag. 2), and a ban for not more than 15 days (Article 215 subparag. 3), and a ban for not more than 10 days and not more than 15 days in cases where a person has been detained in a prison for the purpose of fulfilling his/her own request, such as convenience of prison life, etc. (Article 215 subparag. 3 of the Enforcement Rule of the Punishment Act).

The instant legal provision imposes, in principle, restrictions on treatment on unconvicted prisoners subject to punitive punishment, such as other disciplinary measures, i.e., restrictions on access to newspapers and books, restrictions on telephone conversations, restrictions on correspondence, and restrictions on visitation during the period of forfeiture.

The provision of imposing disciplinary punishment concurrently on a person subject to the disposition of forfeiture has existed since the amendment of the former Enforcement Decree of the Criminal Administration Act on May 20, 1981. At that time, Article 145(2) of the Enforcement Decree of the Criminal Administration Act prohibits meeting, correspondence, work, sports, and reading heating during the period of forfeiture, without exception, was imposed on the restriction of treatment without exception. However, as the Enforcement Decree of the former Criminal Administration was amended on March 28, 2000, the proviso of the same paragraph stipulates that the preparation of litigation documents of unconvicted prisoners and the head of the correctional institution (hereinafter referred to as the "head") may allow meeting, correspondence, or reading of books.

However, the Constitutional Court ruled that the part concerning restrictions on meeting and correspondence in Article 145(2) of the former Enforcement Decree of the Criminal Administration Act (amended by Presidential Decree No. 16759 of Mar. 28, 2000, and amended by Presidential Decree No. 21095 of Oct. 29, 2008) is constitutional (amended by Presidential Decree No. 2002Hun-Ma478 of Dec. 16, 2004) and that the part concerning writing in the main sentence of Article 145(2) is unconstitutional (amended by Constitutional Court Act No. 203Hun-Ma289 of Feb. 24, 2005). After that, the Constitutional Court decided that the portion of writing in the main sentence of Article 145(2) of the former Enforcement Decree of the Criminal Administration Act is unconstitutional (amended by Presidential Decree No. 16759 of Dec. 21, 2007).

B. Of the legal provisions of the instant case, determination as to subparagraphs 9 (Restriction on Telephone Communications), 11 (Restriction on Receipt of Correspondence), and 12 (Restriction on Interview)

(1) Constitutional Court precedents

(A) The Constitutional Court of Korea has prohibited an inmate from meeting and receiving correspondence during a period of time for which the inmate is subject to a disposition of confinement.

Article 145(2) of the Enforcement Decree of the Criminal Act (amended by Presidential Decree No. 16759 of Mar. 28, 2000, and amended by Presidential Decree No. 21095 of Oct. 29, 2008) determined that the part of interview and correspondence pursuant to Article 145(2) does not infringe on the freedom of communication of prisoners (the Constitutional Court Decision 2002Hun-Ma478 of Dec. 16, 2004), and the summary of the reasons are as follows.

The legislative purpose of Article 145 (2) of the Enforcement Decree of the Criminal Administration Act, which aims to prevent contact with the outside by strict isolation of the person who is the most severe disciplinary measure, and to establish the order of confinement by transferring the person's mind to the sense of detention and sculpity to the outside, is justifiable, and to restrict meeting and correspondence in addition to the confinement in the disciplinary room during the period of forfeiture, is an appropriate means to achieve this purpose.

In order to improve awareness of observance of legal order through disciplinary action against convicted prisoners who have committed a violation of the discipline that threatens the security and order of correctional institutions, it is inevitable to limit the rights recognized as limited to ordinary convicted prisoners if they intend to have the effect of disciplinary action, and to accommodate them in the disciplinary room without such restriction is not different from general prison confinement, and it is not meaningful as disciplinary action. In that it is inevitable to restrict meeting, correspondence and correspondence, etc. in that it is intended to accommodate them in the disciplinary room and urge them to open by strict isolation.

However, the proviso of Article 145(2) of the Enforcement Decree of the Criminal Administration Act provides that “When deemed especially necessary for edification or treatment,” a warden shall grant a permit for meeting and correspondence even during the period of confinement, so that a prisoner may not be subject to excessive regulation, such as where meeting and correspondence are uniformly prohibited and a prisoner is unable to meet and receive correspondence for the purpose of disputing the disposition of custody. General convicted prisoners also are subject to restriction on meeting and correspondence, and the frequency of meeting is limited every month, taking into account that there is “any reason specially inappropriate for edification or treatment,” and that the restriction on meeting and correspondence with a prisoner is not excessive restriction on the right of transport and communication of the prisoner as a minimum restriction for the justifiable purpose of national security, maintenance of order, or public welfare.”

(B)In addition, the Constitutional Court decided that Article 112 (3) of the Act of this case, which prohibits unconvicted prisoners from receiving and sending correspondence during the period of forfeiture, does not infringe on the freedom of communication in violation of the principle of excessive prohibition (see Constitutional Court Decision 2012HunMa623, Aug. 28, 2014). The summary of the reason is that in the case of unconvicted prisoners, the legitimacy of the legislative purpose and means of securing safe confinement of prisoners and maintaining the security and order of confinement facilities can be recognized as equal to the above Order 2002HunMa478, and it is inevitable for unconvicted prisoners to limit their rights in order to urge them to comply with the law and order through disciplinary action because their physical freedom are already restricted, and that there is no reason for the above decision of unconvicted prisoners to be different from the above Constitutional Court Decision 2002HunMa478, considering the fact that excessive regulation does not occur by allowing the warden to receive and receive correspondence, etc.

(2) Determination

(A) Of the legal provisions of this case, subparagraph 11 (limited to correspondence) of the legal provisions of this case

As to the above provision, there is no significant change in circumstances or need to determine otherwise than the Decision 2012Hun-Ma623, the above precedents will be invoked as they are.

(B) Of the legal provisions of this case, subparagraph 12 (Restrictions on meeting) of the legal provisions of this case

In order to prohibit an unconvicted prisoner from having an interview during the period of prohibition, the legitimacy of the legislative purpose and appropriateness of the means can be recognized as it is to secure a safe confinement of prisoners as expressed in the Decision 2002Hun-Ma478.

Since fundamental rights, such as physical freedom, such as prisoners, have already been restricted, it is inevitable to restrict their rights in order to urge observance of legal order through disciplinary action. In the case of restrictions on meeting, it is equivalent to the purpose of disciplinary action that prohibits contact with the outside and reflects to the sense of restraint and escape. In the proviso of Article 112(3) of the Punishment Execution Act, if it is particularly necessary for the protection of prisoners’ rights, etc., an exception is provided to allow meeting by a warden. Article 85 of the same Act provides that even in the case where an unconvicted prisoner is being executed a disciplinary action, an exception is provided to ensure the exercise of rights during the trial process, such as meeting with a defense counsel, so that excessive regulation does not occur. In light of the above, the minimum infringement of legal interests and the balance of legal interests can be acknowledged, as described in the above Decision 202Hun-Ma478.

Therefore, the above provision of restriction on meeting does not infringe on the freedom of communication of the claimant in violation of the principle of excessive prohibition.

(C) Of the legal provisions of this case, subparagraph 9 (Restriction on Telephone Communications) of the legal provisions of this case

1) Of the treatment of prisoners in Part II of the Punishment and Execution Act, Chapter V provides for “Interview, correspondence, and telephone conversations.” The provision on interview shall apply mutatis mutandis to the use of a foreign language at the time of telephone conversations, notification of the grounds for suspension of telephone conversations, etc.

In light of the aforementioned provisions, when restricting meeting, correspondence, or telephone conversations (Article 44(3) of the Execution Act, Article 70 of the Enforcement Decree of the Punishment Act), a provision that allows a person subject to disciplinary punishment to know the fact to his/her family members, etc. (Article 222 of the Enforcement Rule of the Punishment Act), etc., the restriction on telephone conversations is merely a treatment that restricts prisoners’ freedom of free communication with the outside of the outside of the outside of the meeting and correspondence, and the specific method of communication varies. The restriction on telephone conversations is directly restricted by the instant provision is a traffic and communication with the outside by telephone, and thus, it is necessary to determine whether the instant provision infringes on the freedom of communication of the requesting person, who is an unconvicted prisoner, in violation of the excessive prohibition principle.

2)The prohibition of telephone conversations for unconvicted prisoners against whom the above disposition of forfeiture was taken during the period of forfeiture can be recognized as legitimate and appropriate for the legislative purpose of securing safe confinement of prisoners and maintaining the security and order of confinement facilities.

(iii)In that a person subject to a disposition of forfeiture is a person who has committed an act contrary to the security and order maintenance of confinement facilities and an act which has undergone the most severe evaluation among them, restricting telephone conversations during the period of forfeiture is equivalent to the purpose of disciplinary action, which is to prevent contact with the outside and to devote themselves to detention and appearance. It is inevitable to limit a prisoner who has already been detained in confinement facilities to urge compliance with the law and order through disciplinary action where fundamental rights, such as physical freedom, are restricted.

Since the proviso of Article 112(3) of the Punishment and Execution Act does not stipulate any exception to which a warden is permitted to allow telephone conversations during a closed period, it is uniformly prohibited to allow telephone conversations. However, in order to allow telephone conversations, additional communications are required, and telephone conversations is more likely to be used for the destruction of evidence of crime or for the spread of contents inconsistent with criminal law compared with meeting and correspondence compared with correspondence. In this respect, there is a need to restrict telephone conversations compared to meeting and correspondence. In addition, in order to remedy the rights of prisoners, telephone conversations is more limited compared to meeting. On the other hand, it is not easy to separately present cases where telephone conversations is necessary in addition to meeting and correspondence for the relief of prisoners' rights.

In full view of the above points, it is difficult to view that restricting the conversation of an unconvicted prisoner during the period of prohibition violates the minimum level of infringement.

4) Private interests restricted under the foregoing provision is a disadvantage that a person who conducts an act deemed to be the most severe among acts violating the safety and order of accommodation facilities during the period of prohibition does not communicate with the outside and the outside during the period of prohibition, and it is difficult to view that the said provision is more serious than the public interest of maintaining the safety and order of accommodation facilities. Accordingly, the said provision does not contravene the balance of legal interests.

5) Ultimately, the foregoing restriction provision cannot be said to infringe on the freedom of communications of petitioners by violating the principle of excessive prohibition.

(D) Determination as to other allegations

The petitioner asserts that the provision on restriction on meeting of this case and the provision on restriction on telephone communications are against the principle of presumption of innocence by limiting the same treatment of the unconvicted prisoner who is subject to a punishment for forfeiture of right to equality and fair trial of the unconvicted prisoner.

The presumption of innocence under Article 27(4) of the Constitution means that the principle does not impose any disadvantage on the premise of recognition of facts constituting an offense or conviction (see, e.g., Constitutional Court Decision 2012Hun-Ba435, Feb. 26, 2015; 2002Hun-Ma699, May 26, 2005). Since the subject matter of the above provision pertains to disciplinary disposition within an accommodation facility, it is difficult to view that the above provisions are disadvantageous to unconvicted prisoners as the effect of conviction. Therefore, the provision on restriction of meeting and telephone communications of this case does not go against the principle of presumption of innocence under the Constitution.

In addition, as seen earlier, it is difficult to see that there is a difference between the unconvicted prisoner and the unconvicted prisoner in terms of the necessity of control for the regulation and safety in the correctional institution. Article 85 of the Criminal Execution Act provides for special provisions to guarantee more the exercise of rights of the unconvicted prisoner by ensuring the preparation of litigation documents, meeting and correspondence with his/her defense counsel, and the exercise of rights in the process of investigation and trial even in the case where the unconvicted prisoner is investigated or is being executed as a person subject to disciplinary action. Thus, even if the above provisions equally treat the unconvicted prisoner in the disciplinary action, it cannot be said that the right to equality or fair trial of the unconvicted prisoner

(3) Sub-decisions

Of the legal provisions of this case, the provisions of subparagraphs 9, 11 and 12 of the Act of this case violate the excessive prohibition principle, and thus do not infringe the right of communications of the claimant.

C. Determination on the part of subparagraph 10 (limited to writing) of the legal provision of the instant case

(1) Constitutional Court precedents

The Constitutional Court of the Republic of Korea shall limit writing by unconvicted prisoners during the period of forfeiture of rights (hereinafter referred to as “this case’s legal provision”).

The reason behind the determination that the instant provision does not infringe on the freedom of expression of unconvicted prisoners (see Constitutional Court Decision 201HunMa623, Aug. 28, 2014) is as follows.

“The instant provision on the restriction of writing” is to enforce compliance with the rule and to maintain the security and order of confinement or confinement facilities by imposing disadvantages on the person subject to the disciplinary measure of the forfeiture of forfeiture of forfeiture of forfeiture of forfeiture of forfeiture of forfeiture of forfeiture of forfeiture of forfeiture of forfeiture of forfeiture of forfeiture of forfeiture of forfeiture of forfeiture of forfeiture of forfeiture of forfeiture of forfeiture of forfeiture of forfeiture of

The release of restriction on treatment, such as restriction on writing, is exceptionally limited in that prisoners who already received the most severe evaluation among acts violating the security and order of confinement facilities, are not often subject to restriction on writing. The Constitutional Court is amended by Presidential Decree No. 16759 of the former Enforcement Decree of the Criminal Administration Act (amended by Presidential Decree No. 21095 of Oct. 29, 200) which completely prohibit writing on February 24, 2005, Article 145(2) of the former Enforcement Decree of the Criminal Procedure Act (amended by Presidential Decree No. 21095 of Oct. 29, 2008) provides for the minimum period of restriction on writing to be unconstitutional for the portion of "authors" in the main sentence of Article 145(2) of the former Enforcement Decree of the Criminal Procedure Act (amended by Presidential Decree No. 2003Hun-Ma2899 of the Criminal Procedure Act). In light of the fact that the period of restriction on writing is within 30 months from the time of execution of the Act.

In addition, since the public interest, which maintains the safety and order of the accommodation facility, is a collective life due to compulsory expropriation, is greater than the private interest restricted due to the limitation of writing, it cannot be deemed to violate the balance of legal interests.

Thus, the provision on the restriction of writing in this case does not infringe the freedom of expression of the claimant against the principle of excessive prohibition.

(2) Determination

The reason for the decision of the above precedents is to be invoked in the judgment on the provision of the restriction on writing of this case, inasmuch as there are no special circumstances that need to be reasonable and altered even in this case.

D. Determination on the part concerning books among subparagraphs 5 (Restriction on Access to Newspapers) and 7 (Restriction on Use of Self-Purchased Goods) among the legal provisions of this case

(1) Contents, etc. of the relevant provisions

Prisoners may apply for the subscription to newspapers, magazines or books at their own expense, and the relevant warden shall permit the subscription except where the newspapers, etc. subject to application for the subscription are harmful publications under the Publishing Industry Promotion Act (Article 47(1) and (2) of the Act). Newspapers, etc. for which prisoners may apply for the subscription do not deviate from the scope of custody of the correctional institution and the scope of prisoners’ possession, within the scope of not exceeding three months in cases of newspapers, etc., and within the scope of ten books (including magazines) per month in cases of newspapers, etc., and within the scope of ten books (including magazines). Provided, That where the warden deems it particularly necessary for prisoners to learn knowledge content and culture, he/she may increase the number of prisoners’ application for

Meanwhile, Article 108 of the Punishment and Execution Act provides only the restriction on the perusal of newspapers (No. 5). Since the restriction on the perusal of books is not provided separately, the restriction on the perusal of general books is not imposed on a prisoner subject to the disposition of forfeiture during the period of forfeiture, and only the restriction on the perusal of books purchased at his own expense under subparagraph 7 among the legal provisions of this case is imposed on an unconvicted prisoner subject to the disposition of forfeiture.

(2) Limited fundamental rights

The right to know, which is a fundamental right derived from Article 21 of the Constitution, refers to the right to collect and process general information from all intelligence sources. Here, “general information” refers to all materials that can be opened to many and unspecified persons, such as newspapers, magazines, and broadcasting, and “information” refers to all materials related to the formation of conscience, ideas, opinions, knowledge, etc. (see Constitutional Court Decision 2008Hun-Ma638, Oct. 28, 2010). Access to newspapers and books is the basic means to access information, which is the premise of free formation of a prisoner’s free will at the marina detention or accommodation facilities, with radio listening and television viewing, to the extent that the restriction on access to newspapers and books is limited to the right to know. Therefore, since the part of subparagraphs 5 and 7 of the legal provision of this case (hereinafter referred to as “the restriction on access to newspapers and books of this case”) directly restricted by Article 21 of the Constitution, the right to know and the right to know can be determined in conflict with the above excessive principle.

(3) Whether the right to know was infringed

(A) The most basic premise of the legislative purpose of the Act is the safety and maintenance of confinement or confinement facilities. In that the confinement facilities are collective lives following compulsory confinement, it is inevitable to strictly regulate the safety of facilities and human resources as well as the safety of inmates in their daily lives. The newspaper in this case

· The provision on the restriction of reading books intends to establish the order of confinement by prohibiting any person who is subject to the highest disciplinary measure for the safety and order of confinement facilities from having his/her contact with the outside by strict isolation, and putting his/her reflect on his/her reflectiveness, and therefore the legitimacy of the legislative purpose is recognized.

(B) The instant provision on restriction on access to newspapers and books is also recognized as appropriate, since general prisoners are deprived of their freedom to access newspapers and books purchased at their own expense, to urge the violators to reflect, and to warn the general prisoners of disadvantage against the violation of the rule, thereby inducing them to comply with the rule by warning their disadvantages to the violation of the rule.

(C) Article 46(2) of the former Criminal Administration Act (wholly amended by Act No. 8728, Dec. 21, 2007); however, Article 46(2) of the same Act (wholly amended by Act No. 8728, Dec. 21, 2007); however, the restriction on reading books was excluded from the type of disciplinary action; accordingly, Article 39(1) proviso of the former Guidelines on the Management of Education of Prisoners (amended by Ordinance of the Ministry of Justice No. 862, Aug. 20, 2009) which restricts the keeping of a list of books and reading books is deleted; thus, the provision on restricting reading books is provided to a person detained in a disciplinary ward, like the person detained in a general private Dong, with the list of books kept in a confinement facility, and the right to request perusal of books and reading within the maximum period of 30 days under Article 39(1) of the same Act (see Constitutional Court en banc Decision 2009Hun-Ma99, Oct. 29, 209, 2009).

(D) The disadvantage that a person subject to a disposition of forfeiture pursuant to the instant provision on restricting access to newspapers and books is unable to peruse newspapers and specific books for a limited period of time, namely, the period of forfeiture. As such, the public interest of maintaining the safety and order of confinement facilities through the observance of discipline is greater than that of the claimant’s right to know, the said provision also satisfies the balance of legal interests.

(4) The theory of lawsuit

The provision on restriction of access to the newspaper and book of this case violates the excessive prohibition principle and thus does not infringe the applicant's right to know.

E. Determination on the CCTV security act of this case

(1) Constitutional Court precedents

The Constitutional Court held that the head of ○○ detention center does not infringe on the privacy and freedom of private life by installing CCTV in his/her ward and keeping safe guard in violation of the excessive prohibition principle (Hun-Ma413 on September 29, 2011). The summary of the reasons is as follows.

Correctional officers may keep safe guard using electronic equipment to the extent necessary to prevent suicide, self-harm, escape, assault, damage, and other acts to injure the life and body of prisoners or the safety or order of the facilities, and keeping safe guard of prisoners in a ward with electronic image equipment may be limited to those highly likely to commit suicide, self-harm, etc. (Article 94(1) of the Criminal Execution Act).

In this case, the respondent judged that there is a high possibility that the claimant may attempt suicide, etc. and committed CCTV safe guard to protect his/her life and body, so the purpose not only is legitimate, but also because there is a time and spatial gap to prevent correctional accidents, such as suicide and self-injury, by the surveillance by a correctional officer alone, the installation of CCTV and regular observation of the convicted prisoner can be an appropriate means to achieve the purpose.

The Enforcement Rule of the Punishment Act and the Enforcement Rule of the Punishment Act stipulate various regulations on the installation and operation of CCTV to minimize damage suffered by prisoners due to CCTV safe guard. Under the above provision, the respondent installed a CCTV camera in order to minimize the limitation on the privacy and freedom of the applicant’s privacy, which has no function to extend the specific part of the applicant, or which is unable to be taken closely. The CCTV camera installed a CCTV camera in order to limit the level of the claimant’s own privacy, to limit the degree of the CCTV, to prevent the prisoner from observing the secret part of his/her privacy, such as the situation where he/she is unable to observe the applicant’s human resources in the light of the fact that it is impossible to ensure the safe guard of the applicant’s human resources at all times, and to continuously observe the CCTV in addition, it is difficult to find out the method of continuously establishing and observing the CCTV other than the method of the applicant’s actions to implement emergency measures.

A suicide accident in a correctional institution not only results in a significant result of a prisoner's own loss of life, but also has a direct and negative impact on other prisoners, and correction.

It is highly necessary to prevent the corruption of the overall facility or correctional policy. Even if the privacy of prisoners is substantially restricted due to CCTV safe guard, the public interest to protect prisoners' life and body and to protect prisoners' safety and order in the correctional institution cannot be said to be small, and therefore, the balance of the legal interests is also satisfied.

(2) Determination

The reasoning of the above precedent is reasonable as it is in this case, and therefore, the opinion of the above precedent is maintained. Therefore, the CCTV security act in this case does not infringe upon the privacy and freedom of the claimant by violating the excessive prohibition principle.

F. Determination on the instant notification act

(1) Opinions on the acceptance of a judge's Park Jong-chul, Lee Jong-chul, Kim Jong-soo, Lee Jin-so, and Justice Clerks

(A) Limited fundamental rights

The right to self-determination of personal information, as a right by which an owner of information can decide when and to what extent he/she should know and use, is guaranteed by the personal right derived from the first sentence of Article 10 of the Constitution providing for the right to pursue happiness and the right to privacy under Article 17 of the Constitution. Personal information subject to the right to self-determination of personal information, such as body, belief, social status, status, etc. of an individual, refers to any information that features the subject of personality of an individual, which makes it possible to identify the identity of the individual. It includes personal information that is formed or already made public in a public life without being limited to information belonging to an individual’s inner or private domain. In addition, all acts such as investigating, collecting, keeping, processing, and using such personal information, fall under the restriction on the right to self-determination of personal information, in principle (see, e.g., Constitutional Court en banc Decision 9Hun-Ma513, May 27, 2010).

The respondent notified the court of the name, resident registration number, dwelling place, reference domicile, case number in the relevant criminal trial, violation of discipline, details of disciplinary disposition, etc. of the requester's name, resident registration number, place of registration, and relevant criminal trial as reference data for sentencing. Such information is an information that features the character of an individual, such as reputation and attitude of acceptance, and makes it recognizable the identity of the individual. Thus, the notification to the court without consent of the requester who is the subject of information is restricted

(B) Whether the violation of the principle of statutory reservation constitutes an infringement on fundamental rights

1) The fundamental rights of the people may be limited to cases necessary for national security, the maintenance of order, or the public welfare pursuant to Article 37(2) of the Constitution, but such restriction is possible only by law in principle. This likewise applies to cases where the freedom and rights of unconvicted prisoners are restricted (see, e.g., Constitutional Court Decision 9Hun-Ma137, May 27, 1999; Constitutional Court Decision 2000Hun-Ma546, Jul. 19, 2001; Constitutional Court Decision 2009Hun-Ma527, Dec. 29, 2011). The principle of statutory reservation does not refer only to the rule by law, but also to the rule based on law. As such, the form of restriction on fundamental rights does not necessarily need to be a form of law, and it can also be restricted by delegation legislation if it satisfies the specification and clarity of delegation demanded by Article 75 of the Constitution.

2) However, as a direct basis for the instant notification, Article 235 of the Enforcement Rule of the Punishment Act, which provides that “where a disciplinary measure is imposed on an unconvicted prisoner, it may be prepared as reference materials for sentencing regarding the relevant act, etc. and notified to the public prosecutor or the court.” However, there is no ground to delegate the right to self-determination of personal information to the Criminal Procedure Act so that it may be restricted. However, Article 115(3) of the Punishment Execution Act provides that “other than those provided for in this Act, matters necessary for disciplinary action shall be prescribed by Ordinance of the Ministry of Justice.” However, the normative meaning of Article 75 of the Constitution depends on the degree of delegation’s normative meaning and scope vary from the type and character of the subject of regulation to the extent of delegation’s delegation. In the area of infringement of fundamental rights, it is difficult to 200Hun-five (see, e.g., Supreme Court Decision 201Hun-Ma828, Mar. 25, 2004).

While Article 108, Article 109, and Article 112 of the Punishment and Execution Act limit the types of disciplinary action and stipulate the method of imposing disciplinary action and the method of enforcing disciplinary action in detail, while Chapter XII (Discipline and Punishment) of the Punishment and Execution Act directly provides the grounds for the notification of this case as disadvantageous treatment or does not delegate it to subordinate Acts and subordinate statutes.

(1) Article 115(3) of the Punishment Execution Act, which provides that a person may delegate “necessary matters concerning disciplinary punishment,” which is separate from the punishment itself, may engage in an act of notifying the instant case, which is a content of the restriction of independent fundamental rights that is distinct from the punishment itself. If Article 115(3) of the same Act, which provides that a person may delegate “necessary matters concerning disciplinary punishment,” can serve as a ground provision for notifying the instant case, the risk of adding unfavorable measures differently from the legislative intent prepared by the Act that strictly limits the type of disciplinary action, method of enforcement, etc. cannot be ruled out.

Therefore, it is difficult to view that only the comprehensive provision of Article 115(3) of the Punishment and Execution Act is a legal basis for the instant notification act.

3) Personal information about prisoners' act of disciplinary action and disciplinary action is collected to secure order in confinement in prison in the course of an unfavorable disposition against a prisoner's violation of the rules in prison. Therefore, according to Article 15 (1) 3 of the Personal Information Protection Act, the respondent may collect personal information about the disciplinary action and use it within the scope of collection purpose.

However, in excess of this, notification to the court having jurisdiction over the criminal trial of the unconvicted prisoner on the act of disciplinary action and its disciplinary action is difficult to view it as the provision of information within the scope of “for securing order in confinement in the correctional institution.” Therefore, Articles 15(1)3 and 17(1)2 of the Personal Information Protection Act that stipulate that the collected personal information may be provided within the scope of collection purpose cannot be the legal basis for the instant notification act.

4) The respondent asserts that Article 18(2)7 and 8 of the Personal Information Protection Act is a legal basis for the instant notification act. Thus, the respondent's instant notification act is based on Article 18(2)7 and 8 of the Personal Information Protection Act.

First of all, given that the instant notification was made in the course of a criminal trial by a petitioner in the court, it cannot be deemed necessary for “an investigation of a crime and institution of a public prosecution.” Meanwhile, the instant notification is given notice of reference materials for sentencing at the night. Therefore, it is difficult to deem it necessary for “maintenance of a public prosecution.” Therefore, Article 18(2)7 of the Personal Information Protection Act does not constitute the grounds for the instant notification act.

Next, Article 18(2)8 of the Personal Information Protection Act provides that a personal information manager may use personal information for purposes other than the original purpose or provide it to a third party. However, this provision is only a legitimate permission to provide personal information of a personal information manager according to a court’s judgment and litigation direction lawfully made in accordance with the Act and subordinate statutes in the lawsuit. If Article 36 of the Juvenile Act provides for a protective disposition under the Juvenile Act, a legal basis exists to require a judge of the Juvenile Department to submit a report or written opinion on a juvenile, and Article 272 of the Criminal Procedure Act provides for a court to inquire a public office or a public or private organization to require a report on necessary matters or to send documents in custody.

In contrast, Article 18(2)8 of the Personal Information Protection Act provides a personal information manager with the authority to submit personal information to the court at any time in the court’s trial process, if it is deemed that such provision provides a personal information manager with the authority to submit such information actively and dynamicly, it is likely that the principle of pleading, which is the major principle of the civil procedure, will be punished or a deviation from the strict provision on admissibility of evidence in the criminal procedure. Therefore, even though there is no court’s legitimate procedure of investigation of evidence, it is difficult to view that Article 18(2)8

Even based on the interpretation that Article 18(2)8 of the Personal Information Protection Act allows the respondent to provide active and dynamic personal information, this case’s notification is difficult to be deemed an act of providing personal information under Article 18(2)8 of the Personal Information Protection Act. Pursuant to Article 18(4) of the Personal Information Protection Act, where an respondent provides a third party with personal information for any purpose other than the intended purpose pursuant to Article 18(2)8 of the Personal Information Protection Act, matters regarding the legal basis, purpose, scope, etc. of the provision shall be published on the Official Gazette or on the Internet homepage. Article 2 of the Enforcement Rule of the Personal Information Protection Act provides for the details of the relevant announcement. In addition, according to Article 18(5) of the Personal Information Protection Act, the respondent shall request a third party who is provided with personal information to restrict the purpose and method of use or to prepare necessary measures to ensure the safety of personal information, and the court shall take necessary measures to ensure the safety of personal information.

However, it does not seem that the respondent made a public announcement under Article 18(4) of the Personal Information Protection Act or a request under Article 18(5), or that there is no circumstance that the respondent is preparing a ledger for the use of personal information for any purpose other than its original purpose and for the provision of a third party under Article 3(1

Thus, the respondent's act of notifying this case individually

It is difficult to see that it was based on Article 18 (2) 8 of the Protection Act.

(C) Sub-decisions

Ultimately, as the instant notification infringes on the claimant’s right to self-determination of personal information in violation of Article 37(2) of the Constitution, it should be declared as unconstitutional in order to prevent the same or similar infringement of fundamental rights.

(2) An opinion to dismiss a judge or a judge's assistant;

(A) Whether it violates the principle of statutory reservation

1) In light of the purport of Article 37(2) of the Constitution and Article 75 of the Constitution allowing delegation legislation only with respect to “matters specifically determined and delegated by the Act” that may be restricted by Act, where fundamental rights of the people are restricted by Acts and subordinate statutes, specific and clear provisions on the contents and scope to be directly stipulated in subordinate Acts and subordinate statutes shall be provided by Act and subordinate statutes, and any person may predict the outline of the contents to be stipulated in subordinate Acts and subordinate statutes (see, e.g., Supreme Court Decision 97Hun-Ga8, Jan. 28, 199; 200Hun-Ga10, Jun. 27, 2002; 200Hun-Ga10, Jun. 27, 2002). From this perspective, Article 115(3) of the Criminal Execution Act, which requires the Ordinance of the Ministry of Justice to determine a “matters concerning punishment,” does not expressly stipulate matters concerning notification of materials containing independent restriction of fundamental rights, and thus, it cannot be seen as legal grounds for notification of this case.

2)However, Article 6 of the Personal Information Protection Act provides that the protection of personal information shall be governed by this Act except as otherwise provided for in other Acts, and it is necessary to examine whether the legal basis for the instant notification can be found in the relevant provisions of the Personal Information Protection Act as a general law concerning the protection of personal information.

Article 15 (1) of the Personal Information Protection Act provides that a public institution may collect personal information if it is inevitable for the performance of its duties under its jurisdiction prescribed by law, etc., and Article 17 (1) 2 of the same Act provides that a public institution may provide a third party with personal information within the scope of the purpose of collecting personal information pursuant to Article 15 (1) 2 and 3 of the same Act.

Among the contents of personal information in question in this case, disciplinary action means a violation of discipline by unconvicted prisoners, etc., collected by the head of a correctional institution for the security and maintenance of order of a correctional institution (Articles 105(1) and 107 of the Criminal Execution Act).

Article 51 of the Criminal Act provides “The circumstances after a crime is committed.” After an unconvicted prisoner is arrested or detained, materials pertaining to “the circumstances after a crime is committed” exist in a correctional institution. In principle, the head of a correctional institution may contribute to the security and maintenance of order of a correctional institution by notifying the court of a violation of regulations within the correctional institution due to the characteristics of the correctional institution, in principle, prohibited and isolated from outside and contact with the outside so that it can be used as materials for sentencing reference, thereby contributing to the security and maintenance of order of the correctional institution. In addition, the fact that the violation of regulations within the correctional institution is notified to the court and used as materials for sentencing reference may contribute to the maintenance of order and safety of confinement by taking light of the awareness of the violation of regulations in the correctional institution and other unconvicted prisoners as well as the unconvicted prisoner. Article 235 of the Enforcement Rule of the Punishment and Execution Act, which is the Ordinance of the Ministry of Justice, provides that the head of the correctional institution may prepare materials for sentencing reference on the act subject to disciplinary action and notify the competent prosecutor or the competent court.

Thus, it can be said that the head of a correctional institution prepares and notifies data on sentencing of unconvicted prisoners on the act subject to disciplinary action to the competent court is for the realization of proper sentencing, smooth progress of criminal trial procedures and maintenance of security and order in the correctional institution, and provides them to a third party to the court within the scope of collection of personal information, such as the act subject to disciplinary action, based on Article 17(1)2

3) Even if it is found that the head of the New Year Correctional Institution prepares and notifies the competent court of the preparation of data on sentencing of the unconvicted prisoner's act subject to disciplinary action exceeds the collection purpose of the data, it can be said that it is based on the Personal Information Protection Act.

Article 18 (2) 8 of the Personal Information Protection Act provides that a personal information manager may provide a third party with personal information for any purpose other than the purpose of collection, if necessary for the court's judicial affairs.

Since the determination of punishment is clear that it is a court's trial duty, it can be deemed that the instant notification is provided to a court for the performance of the court's trial duty. As seen earlier, the fact that an unconvicted prisoner committed a violation of discipline within a correctional institution constitutes "the circumstances after the crime is committed," which are the grounds that the court having jurisdiction over the relevant criminal trial should consider in sentencing under

Moreover, it can be an important reference material to indirectly know the defendant's tendency, etc. In addition, due to the specificity of the correctional institution, which is a closed place, information on the facts that an unconvicted prisoner committed a violation of regulations by the head of the relevant correctional institution is exclusively subject to the exclusive jurisdiction of the head of the relevant correctional institution. Therefore, the need to give notice for the court

In the quoted opinion, Article 18(2)8 of the Personal Information Protection Act only presents the case where personal information is provided to a court in accordance with the court’s trial and court’s direction. In this case, where a defendant voluntarily provides personal information to a court without a court’s request for information, the above provision on the right to receive notification of this case cannot be a provision on the right to receive notification of this case. However, Article 18 of the Personal Information Protection Act does not provide that the provision on the right to provide personal information can only be provided upon a court’s request. If the head of a correctional institution gives notice of sentencing reference materials only upon a court’s request, it may lead to unreasonable consequences that vary depending on the court’s request. In addition, if the court in charge of criminal trials requests the sentencing reference materials on all accused under detention to prevent such unreasonable consequences, it cannot be deemed appropriate in terms of efficiency of business affairs. Furthermore, in other cases where the provision of personal information is permitted beyond the purpose of collection of personal information, it is difficult to view that the provision on the sentencing of this case requires the provision of information only at the recipient’s request.

The quoted opinion argues that Article 18 (2) 8 of the Personal Information Protection Act cannot be a basis for the instant notification, since the public announcement of the legal basis, purpose, scope, etc. of the provision of personal information under Article 18 (4) of the Personal Information Protection Act or the measures to restrict the use of information and to secure safety with respect to a person who receives information under Article 18 (5) of the same Act cannot be a basis for the instant notification. However, it is a separate matter that is separate from the compliance with the legal basis for whether the said public announcement and safety are taken. The respondent may be erroneous for failing to take such procedural measures, but it cannot be denied that there is such legal basis.

4) In full view of the above facts, the instant notification act may be deemed to have been conducted based on the Personal Information Protection Act, which is a general corporation for the protection of personal information. Therefore, it is difficult to deem that the instant notification act violates the principle of statutory reservation by restricting the applicant’s right to self-determination of

(B) Whether the principle of excessive prohibition is violated

1) The instant notification is recognized as appropriate for the purpose of realizing proper sentencing for the relevant unconvicted prisoners, facilitating criminal procedures, and maintaining security and order in correctional institutions by informing the court of the grounds for and details of disciplinary measures in the detention house, one of the attitudes of the unconvicted prisoners during confinement, so that they can be used as reference materials for sentencing.

2) It is difficult to view the content of personal information provided due to the instant notification as an objective fact related to the relevant subject of information, because it is difficult to view it as a sensitive information closely related to an individual’s personality or a confidential private area. Therefore, it is difficult to say it as a subject of strict protection (see, e.g., Constitutional Court Decision 2003Hun-Ma282, Jul. 21, 2005).

In addition, the scope of the right to self-determination of personal information of unconvicted prisoners in relation to the court, which is the subject of arrest or detention, is limited to the court. The notification of this case is limited to the court. The court notified by the head of the relevant correctional institution as reference materials for sentencing of the act of disciplinary action, etc. shall not use it for purposes other than the purpose of receiving it or provide it to a third party (Article 19 of the Personal Information Protection Act).

In addition, the attitude of the defendant's confinement constitutes "the circumstances after committing a crime" as stipulated in Article 51 of the Criminal Act, so that it can be promptly identified and used as reference materials for sentencing in criminal proceedings so that it can be used as reference materials for sentencing, thereby realizing proper sentencing, smooth progress of criminal proceedings, and maintenance of security and order in correctional institutions, it is difficult to view that there is no other efficient means to achieve the same legislative purpose, as well as informing the court of the reason for and details of disciplinary measures against unconvicted prisoners.

Therefore, the notice of this case is a minimum requirement of infringement.

has been in place.

3) Personal information provided to a court due to the instant notification is the content of a violation of discipline and disciplinary measure by an unconvicted prisoner subject to disciplinary action in a correctional institution, and the degree of restriction on the right to self-determination of personal information thereby is not significant. However, public interests such as the realization of appropriate sentencing to be achieved by the instant notification act, the smooth progress of criminal trial procedures, and the maintenance of security and order in a correctional institution are much more serious, and thus, it does not contravene the principle of balance of

4) If so, the instant notification did not infringe the claimant’s right to self-determination of personal information in violation of the excessive prohibition principle.

(C) Sub-decisions

The notification of this case does not infringe the claimant's right to self-determination of personal information against the principle of legal reservation and the principle of excessive prohibition.

(3) Opinion by Justice Kim Chang-soo and Justice Cho Jae-ho

We think, for the following reasons, we should dismiss the instant petition for adjudication on the instant notification act as unlawful.

(A) The claimant's assertion

The claimant asserts that the defendant's fundamental rights are infringed in his/her criminal trial by notifying the defendant of the reason for the violation of the discipline and the details of the disciplinary measure as reference material to sentencing in his/her criminal trial, but it does not mean that the personal information related to his/her disciplinary measure is unconstitutional. Therefore, it is reasonable to view that the basic right claimed by the claimant as being infringed by the notification act of this case is rather the right to self-determination of personal information, rather than the right to request a trial (the right to receive a fair trial).

(B) Power-based factual act as an exercise of public authority

1) The so-called "power factual act" subject to constitutional complaint under Article 68 (1) of the Constitutional Court Act is not an administrative act of an administrative body, but an act of administrative fact, the purpose of which is direct occurrence of a certain result (see Constitutional Court Decision 2007Hun-Ma992, Oct. 29, 2009; Constitutional Court Decision 89Hun-Ma35, May 6, 1994; Constitutional Court Decision 2007Hun-Ma92, Oct. 29, 2009; Constitutional Court Decision 89Hun-Ma35, May 6, 1994).

2) Whether a certain act constitutes a fact-finding act ought to be determined individually by comprehensively taking into account the specific circumstances as at the time the act was performed, such as the relationship between the administrative body and the other party in question, the other party’s intent, degree and attitude toward such act, the purpose and circumstance of such act, and the issuing of orders and compulsory means under the statutes (see Constitutional Court Decision 89Hun-Ma35, May 6, 1994; Constitutional Court Decision 201Hun-Ma332, July 26, 2012).

3) In order to exercise the public authority that is the subject of a constitutional complaint, the exercise or non-exercise must cause a direct legal effect on the rights and obligations of the people to change the legal relationship or legal status of the claimant disadvantageously (see, e.g., Constitutional Court Decision 2008HunMa500, Feb. 23, 2012; Constitutional Court Decision 2010HunMa599, Mar. 29, 2012).

(C) Whether the instant notification act is an exercise of public authority

1) The instant notification is merely an internal factual act between the State agencies (responies and courts) and does not unilaterally enforce against the claimant in a superior position, but does not directly disadvantageous legal effects on the legal status, rights and obligations of the claimant. Therefore, the instant notification does not constitute “exercise of public power” under Article 68(1) of the Constitutional Court Act.

2) In addition, even if the applicant’s materials are notified to the court, the contents of the notification are not used as evidence to acknowledge the guilty of the facts charged, but does not fall under the grounds for the requisite aggravation of the statutory punishment. Inasmuch as the judgment on sentencing in a criminal trial is the exclusive authority of a judge, whether the contents of the materials pertaining to sentencing should be referred to the sentencing ought to depend on the discretion of the judge. Accordingly, the materials pertaining to sentencing reporting notified by the respondent cannot be binding on the court.

3) The claimant asserts that the respondent was at a disadvantage in sentencing in his criminal trial by notifying the Claimant's District Court and Busan District Court of the reason for the violation of the discipline and the details of disciplinary measures as reference materials for sentencing. However, this is merely a vague trend without any ground of the Claimant. There is no objective evidence that the Claimant was at a disadvantage in sentencing in the criminal trial, and there is no mentioning in the criminal judgment of each of the above courts against the Claimant. Even if the Claimant was at a disadvantage in sentencing due to the notification of the instant case, it is arising from a judge's exclusive authority judgment, and the notification of the instant case itself does not result in a legal effect that directly causes the Claimant's disadvantage in sentencing.

4) The petitioner may, to the long time, make an argument favorable to himself/herself or submit counter-written evidence so that the reason for the claimant’s violation of the discipline and the fact of disciplinary action do not adversely affect the sentencing in the course of pleading of his/her criminal trial. Meanwhile, if there are materials that could affect favorablely the sentencing, such as the prior facts committed by the claimant during his/her confinement, it is reasonable to deem that such materials can be submitted to the court even without any special provision in the law. In addition, in cases where the claimant is dissatisfied with the sentence imposed by himself/herself, an appeal under the provisions of the Criminal Procedure Act may be filed and a dispute may be raised (see Articles 361-5 subparag. 15 and 383 subparag. 4 of the Criminal Procedure Act). Thus, it is reasonable to deem that the act of notifying this case, which is merely a material to participate in sentencing, cannot be subject to a request for adjudication on constitutional complaint independently (see Constitutional Court Decision 200Hun-Ma453, Sept. 23,

(C) Sub-decisions

Ultimately, the instant notification does not constitute a “exercise of public power” subject to the constitutional complaint under Article 68(1) of the Constitutional Court Act, and therefore, the instant petition for adjudication on it is unlawful and correct to dismiss it.

5. Conclusion

All of the appeals of this case are dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices, except for a dissenting opinion as to the provision on the restriction on writing of this case on June 2, 2006, against the Justice Kim Jong-soo, Justice Lee Jin-soo, Justice Lee Jin-soo, Justice Lee Jin-sung, and Justice Kang Jong-won, as shown in the following, although five Justices agreed to the opinion that the notification of this case should be declared as unconstitutional, they cannot make the decision of acceptance because they did not reach the quorum for the decision of acceptance of constitutional complaint as stipulated in Article 113(1) of the Constitution and the proviso of Article 23(2)1 of the Constitutional Court Act.

6. Dissenting Opinion as to the provision on the limitation to writing of this case by Justice Lee Jong-chul, Justice Kim Jong-soo, Justice Lee Jin-sung, and Justice Kang Jong-won

From August 28, 2014, we express the Dissenting Opinion that the instant provision on the restriction of writing infringes on the freedom of expression in violation of the excessive prohibition doctrine, as follows:

A. The instant provision on the restriction of writing may recognize the appropriateness of the legitimacy of the legislative purpose and the means as if the legal opinion were pointed out, but is contrary to the minimum principle of infringement on the following grounds, and fails to meet the balance of legal interests.

(b)The Constitutional Court ruled that the provision of the former Enforcement Decree of the Criminal Administration Act, which entirely prohibits writing during the period of forfeiture, infringes on the freedom of expression in violation of the excessive prohibition principle (see, e.g., Constitutional Court Decision 2003Hun-Ma289, Feb. 24, 2005). However, the provision of the instant restriction on writing, as a matter of principle, prohibits writing against the prisoner subject to the disposition of forfeiture, and it is difficult to find the need to prohibit writing as a matter of principle.

The author’s act itself is a personal act related to his/her mental activity, not an act that is likely to pose a risk to the safety and order of confinement facilities, but an act that is not necessarily premised on spreading the expressive material to the outside. In general, in comparison with the freedom of ordinary expression, the freedom of writing can be deemed to have a position close to the freedom of conscience and ideas or the dignity and value of human beings. Furthermore, the effect of disciplinary action following the restriction on writing is very large for each person.

As the instant provision on the restriction on writing does not limit writing activities during the period of forfeiture, in principle, but it is possible to achieve the legislative purpose sufficiently by exceptionally restricting writing activities, such as where, in principle, it is difficult to achieve the purpose of the disposition, or where there is a risk of self-harm using the writing tool, etc., even if permitted, depending on the circumstances in which the disposition of forfeiture is issued. Therefore, the instant provision on the restriction on writing is inconsistent with the principle on the minimum nature of infringement.

(c) The public interest in maintaining the security and order of accommodation facilities may be sufficiently maintained through other means, while the disadvantage of prisoners pursuant to the provision of the limitation on writing in this case is much larger than that of the public interest. Since human memory is limited and there is no guarantee that ideas and emotions that prisoners intended to remain in the form of writing are preserved until the completion of the suspension disposition, there may be cases where prisoners’ freedom of expression is fully disregarded due to the foregoing provision. Accordingly, the provision in this case does not meet the requirements of balance of legal interests.

(d)In the end, the provision of the instant restriction on writing infringes on the freedom of expression of the claimant in violation of the principle of excessive prohibition.

7. Dissenting Opinion as to the provision on the restriction on access to the examination of this case by Justice Kim Jong-soo, Justice Lee Jin-sung, and Justice Kang Jong-won

A. As pointed out in the Majority Opinion, the legislative purpose of establishing a prison confinement order is just, and a sanction restricting the purchase and inspection of newspapers against unconvicted prisoners subject to a disposition of forfeiture of order is imposed.

It is clear that it is an appropriate means to achieve the legislative purpose. However, in the case of a legislation that restricts fundamental rights, it is necessary to choose the method which infringes the lowest of fundamental rights among various means to achieve the legislative purpose.

It is clear that limiting the effect of disciplinary action, such as prohibiting correspondence and interview, in addition to the confinement of a prisoner who has been subject to a disposition of forfeiture in order to maintain the security and order of a prison, can considerably be limited. However, restricting the reading of interrogation cannot be deemed necessary or appropriate to achieve the legislative purpose.

(b)In order to function properly, it should be possible to form a free public opinion. In order to form a free public opinion, anyone can freely express his/her opinion, and the freedom of expression is premised on the right to know freely and without being disturbed by the State. Accordingly, the right to know is a very important fundamental right for the realization of democracy;

On the other hand, newspapers are publications that promptly deliver information on cases occurring in society, and are important information sources that anyone can easily access and obtain information. The reading of newspapers is an individual act actively approaching information that can generally be accessed and thus the State is obliged to limit this in principle and guarantee it to the maximum extent possible.

The minimum right to know should also be guaranteed even to a prisoner subject to disciplinary action in violation of prison regulations. Therefore, it is possible to take minimum measures necessary for maintaining order and maintaining security by eliminating and providing improper articles contrary to the purpose of detention or disciplinary action. However, prohibiting the perusal of an acry newspaper itself is an excessive restriction on the right to know of the claimant (see Constitutional Court Decision 98Hun-Ma4, Oct. 29, 1998).

(c)If a prisoner is confined in prison and subject to a disposition of forfeiture, telephone conversations and correspondence and interview are restricted, as well as television viewing and radio listening, etc. In addition, if the period of forfeiture is restricted, the person subject to disciplinary action of forfeiture is no longer known at all as to which day occurs in society for 30 days. In one’s annual notification, natural disasters cannot be known, and if a major election is during the period of forfeiture, the prisoner’s right to vote cannot be exercised properly because information on election can not be obtained. Accordingly, it is difficult to ascertain who is the member of the National Assembly or the head of the local government in the district where the Republic of Korea was located. If the period of forfeiture expires, it is possible to peruse any newspaper that has not been considered during the period of forfeiture, but it is not a question, and the essential part of the right to know, which was infringed by perusal, cannot be restored.

Meanwhile, reading a newspaper is an act that does not pose a risk of maintaining the order and safety of a correctional institution, only taking appropriate measures, such as deletion of an individual’s personal act related to his/her mental activities, etc. Rather, a prisoner may obtain up-to-date information and prepare for rehabilitation to society in the future, and may contribute to correction or edification of the prisoner by promoting sound mental activities of the prisoner. Nevertheless, restricting a prisoner’s reading of a newspaper on the ground of his/her violation of regulations goes against the principle of excessive prohibition even in light of the legislative purpose of establishing the order of confinement in a correctional institution.

D. Article 19 of the Universal Declaration of Human Rights declares that “All persons shall have the right to freedom of opinion and expression. This right includes freedom to express their opinions and freedom to pursue, receive, and deliver information and ideas regardless of the border through any form of medium.” Furthermore, Article 39 of the United Nations’s Minimum Standard Rule on the Treatment of Prisoners under Confinement of the United Nations provides that “the confined person shall be able to periodically understand any more important news by means of opening newspapers, periodicals or facilities, listening to broadcasts, listening to lectures, or supervising the authorities.” This right also includes the freedom to express opinions and freedom to seek, receive, and deliver new news regardless of the border.” Article 39 of the United Nations’s Minimum Standard Rule on the Treatment of Prisoners under Confinement of the United Nations provides that “The confined person shall be able to know any more important news on a regular basis by means of the means permitted or similar to the authorities.”

According to the French penal law, even in case of confinement in the most severe disciplinary action or disciplinary action, the newspapers that have been read prior to the disciplinary action may be continuously perused and the correctional institution may select and peruse newspapers, periodicals, etc. also held by the correctional institution. In addition, in Germany’s Brazil, the restriction on access to newspapers or reading is excluded from the type of disciplinary action. In the U.S., there is a precedent of the Federal Appeal Court stating that the restriction on access to specific newspapers against prison inmates is lawful and access to other materials is possible as one of the reasons therefor.

The minimum right to know about information is guaranteed even if the inmate is a prison subject to disciplinary action in violation of the rules.

It is also a constitutional interpretation that meets the standards of the United Nations and meets the international human rights level.

Judges

Justices Park Jong-chul (Presiding Justice) Lee Jong-sung Kim, Lee Jin-sung Kim, Kim Chang-sung, Cho Chang-ho, Cho Jong-won

Site of separate sheet

[Attachment] Relevant Provisions

Administration and Treatment of Correctional Institution Inmates Act (wholly amended by Act No. 8728, Dec. 21, 2007)

Article 94 (Surveillance by Electronic Equipment) (1) A correctional officer may keep safe guard of prisoners or facilities using electronic devices to the extent necessary for the prevention of suicide, self-harm, escape, assault, damage and other acts to injure the lives and bodies of prisoners or the safety or order of the relevant institution (hereinafter referred to as "suicide, etc."): Provided, That the safe guard of prisoners in a ward by electronic visual devices shall be limited to cases where suicide, etc. is highly likely to occur.

(2) Where prisoners in a ward under the proviso to paragraph (1) are kept safe by electronic image equipment, they shall record the employees under safe guard, hours for safe guard, objects of safe guard, etc. In such cases, if a female prisoner is a female prisoner, a female correctional

(3) In cases of keeping safe guard under paragraphs (1) and (2), the attention shall be made so as not to infringe on human rights of prisoners under safe guard.

(4) Matters necessary for the types, places of installation, methods of use, management of recorded records, etc. of electronic equipment shall be prescribed by Ordinance of the Ministry of Justice.

Article 115 (Invalidation, etc. of Disciplinary Action) (1) Where a prisoner whose execution of disciplinary action is terminated or exempted has good correctional records and fails to receive disciplinary action during the period prescribed by Ordinance of the Ministry of Justice, the relevant warden may invalidate disciplinary action upon approval of

(2) Notwithstanding paragraph (1), if a prisoner is deemed to have contributed significantly to the prevention of correctional accidents, the relevant warden may invalidate disciplinary action after undergoing a resolution of the committee for classified treatment and obtaining approval from the Minister of Justice

(3) Except as otherwise provided for in this Act, matters necessary for disciplinary action shall be prescribed by Ordinance of the Ministry of Justice.

Personal Information Protection Act (Amended by Act No. 10465, Mar. 29, 2011)

Article 15 (Collection and Use of Personal Information) (1) A personal information manager may collect personal information and use it for the purpose of collection in any of the following cases:

3. Where it is inevitable for a public institution to perform its duties prescribed by Acts and subordinate statutes.

Article 17 (Provision of Personal Information) (1) A personal information manager may provide (including sharing; hereinafter the same shall apply) a third party with the personal information of a subject of information in any of the following cases:

2. Where personal information is provided for the purpose of collecting the personal information in accordance with Article 15(1)2, 3 and 5;

Personal Information Protection Act (Amended by Act No. 11990, Aug. 6, 2013)

Article 18 (Restrictions on Use and Provision of Personal Information) (1) A personal information manager shall not use personal information beyond the scope provided for in Article 15 (1) or provide a third party with personal information beyond the scope provided for in Article 17 (1) and (3).

(2) Notwithstanding paragraph (1), a personal information manager may use personal information for any purpose other than the intended one or provide a third person with such information in any of the following cases, except when it is likely to unfairly infringe on the interests of a subject of information or a third person: Provided, That it shall be limited to public institutions in cases of subparagraphs

7. Where it is necessary to investigate, institute and maintain a public prosecution;

8. Where such data is needed by the court for a trial;

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심판대상조문

형의 집행 및 수용자의 처우에 관한 법률(2007. 12. 21. 법률 제8728호로 전부개정된 것) 제112조 제3항 본문 중 미결수용자에게 적용되는 제108조 제5호, 제7호 중 도서에 관한 부분, 제9호, 제10호, 제11호, 제12호에 관한 부분

참조조문

헌법 제10조, 제17조, 제18조, 제21조, 제37조 제2항

형의 집행 및 수용자의 처우에 관한 법률(2007. 12. 21. 법률 제8728호로 전부개정된 것) 제94조, 제108조, 제112조 제3항 단서, 제115조

개인정보 보호법(2011. 3. 29. 법률 제10465호로 제정된 것) 제15조 제1항 제3호, 제17조 제1항 제2호

개인정보 보호법(2013. 8. 6. 법률 제11990호로 개정된 것) 제18조 제1항, 제2항 제7호, 제8호

형의 집행 및 수용자의 처우에 관한 법률 시행규칙(2008. 12. 19. 법무부령 제655호로 제정된 것) 제235조

참조판례

가. 헌재 2004. 12. 16. 2002헌마478, 판례집 16-2하, 548, 560-562헌재 2005. 5. 26. 2002헌마699등, 판례집 17-1, 734, 744헌재 2014. 8. 28. 2012헌마623, 판례집 26-2상, 381, 390-391헌재 2015. 2. 26. 2012헌바435, 판례집 27-1상, 88, 97

나. 헌재 2014. 8. 28. 2012헌마623, 판례집 26-2상, 381, 388-390

다. 헌재 2009. 10. 29. 2009헌마99, 공보 157, 2096, 2097-2098헌재 2010. 10. 28. 2008헌마638, 판례집 22-2하, 216, 227

라. 헌재 2011. 9. 29. 2010헌마413, 판례집 23-2상, 726, 731-734

마. 헌재 1994. 5. 6. 89헌마35, 판례집 6-1, 462, 485-486헌재 1999. 1. 28. 97헌가8, 판례집 11-1, 1, 7-8헌재 1999. 5. 27. 97헌마137등, 판례집 11-1, 653, 661-662헌재 2001. 7. 19. 2000헌마546, 판례집 13-2, 103, 109헌재 2002. 6. 27. 2000헌가10, 판례집 14-1, 565, 570헌재 2004. 3. 25. 2001헌마882, 판례집 16-1, 441, 454헌재 2004. 9. 23. 2000헌마453, 판례집 16-2상, 578, 584헌재 2005. 2. 24. 2003헌마289, 판례집 17-1, 261, 271-272헌재 2005. 5. 26. 99헌마513, 판례집 17-1, 668, 682-683헌재 2005. 7. 21. 2003헌마282등, 판례집 17-2, 81, 92헌재 2009. 10. 29. 2007헌마992, 판례집 21-2하, 288, 293-294헌재 2010. 5. 27. 2008헌마663, 판례집 22-1하, 323, 333-334헌재 2011. 12. 29. 2009헌마527, 판례집 23-2하, 840, 846헌재 2012. 2. 23. 2008헌마500, 판례집 24-1상, 228, 243헌재 2012. 3. 29. 2010헌마599, 판례집 24-1상, 631, 639헌재 2012. 7. 26. 2011헌마332, 판례집 24-2상, 324, 328헌재 2014. 8. 28. 2011헌마28등, 판례집 26-2상, 337, 363대법원 2010. 4. 29. 선고 2010도750 판결

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