(a) Whether the defendant under detention has standing to sue to seek revocation of a disposition to refuse to grant permission for meeting in prison (affirmative)

B. The nature of the right to interview with another person of the detained defendant or suspect (=basic rights under the Constitution) and the provisions of Articles 89 and 213-2 of the Criminal Procedure Act

(c) Requirements and scope of restrictions on the right to meet referred to in paragraph (b) above;

D. Interpretation of the concept of “necessary work” under Article 18(2) of the Criminal Administration Act, which applies mutatis mutandis to unconvicted prisoners, as a provision on permission for meeting in prison.

A. A third party, who is not the other party to an administrative disposition, may institute an administrative litigation seeking the revocation of the administrative disposition pursuant to Article 12 of the Administrative Litigation Act, where there are legal and specific interests in the revocation of the administrative disposition. According to Articles 89 and 18(1) of the Criminal Procedure Act, the defendant under detention has the right to have a meeting with others pursuant to the provisions of Article 89 of the Criminal Procedure Act, and the person who is detained in a prison may have an interview with others with the permission of the warden (the above meeting right refers to the category of fundamental rights under the Constitution). Unless there are special circumstances, such as the defendant under detention expressed in advance that he/she does not want to have an interview with the person who has filed an application for interview, the defendant under detention has standing to seek the revocation of the above disposition

B. One of the most fundamental freedom of human beings is that the defendant or suspect under detention is the subject of such fundamental rights as well as the defendant or suspect under detention is the subject of such fundamental rights, and rather, the defendant or suspect under detention is able to maintain contact with the outside by communicating with another person in the case of the defendant or suspect who is isolated from the outside by detention. In addition, Article 27(4) of the Constitution of the Republic of Korea provides the principle of presumption of innocence provides that the defendant or suspect under detention has the above fundamental rights under the Constitution. Thus, the right to contact with another person of the defendant or suspect under detention under Articles 89 and 213-2 of the Criminal Procedure Act is only the confirmation of such fundamental rights under the Constitution, and it cannot be deemed that the defendant or suspect has the right to contact with another person of the defendant or suspect under detention under the provisions of the Criminal Procedure Act.

C. Even if the right to interview with another person of the detained defendant or suspect is a fundamental right under the Constitution, if necessary for national security, maintenance of order, or public welfare, it may be restricted by law, in accordance with the provision of Article 37(2) of the Constitution, and specifically permitted meetings to prevent escape or destruction of evidence, or in a case where it violates the purpose of detention, or is in danger of harm to the maintenance of order in the detention facility, and the right to interview of the detained defendant or suspect may be restricted. However, even if such restriction is not necessary, it cannot be said that excessive restriction is unconstitutional as it infringes on the fundamental right guaranteed under the Constitution.

D. In light of the fact that the right to interview with the other party of an unconvicted prisoner is a fundamental right guaranteed by the Constitution, and the exercise of the right should be guaranteed in principle, and the exercise of the right can be restricted exceptionally only on an exceptional basis, in cases where Article 18(2) of the Criminal Administration Act applies mutatis mutandis to the unconvicted prisoner, the concept of "necessary work" should be interpreted broadly, and there are no special circumstances to allow the interview, such as where the purpose of the interview is contrary to the purpose of detention or there is a significant danger that it may harm the maintenance of order in the confinement facility.

(a)(c)Article 89 of the Criminal Procedure Act, Articles 62 and 18(1)(a) of the Criminal Procedure Act, Article 12 of the Administrative Litigation Act.(d) Article 213-2(b) of the Criminal Procedure Act, Article 10(c) of the Constitution, Article 37(2)(d) of the Criminal Procedure Act, Article 18(2) of the Criminal Procedure Act;

A. Supreme Court Decision 87Nu727 decided Nov. 22, 1988 (Gong1989, 29)

Plaintiff 1 and one other, Plaintiffs et al., Counsel for the defendant-appellant

Head of Red Correctional Institution;

Seoul High Court Decision 91Gu4043 delivered on July 10, 1991

The judgment below is reversed and the case is remanded to Seoul High Court.

Plaintiff 1’s ground of appeal is examined.

On March 5, 191, 191, Plaintiff 2 filed an application with the Defendant for interview of Plaintiff 1 who was confined to the Hongsung Prison managed by the Defendant as the Defendant, but the Defendant’s rejection disposition was defective in the administrative litigation of this case where Plaintiff 1 filed an application for interview with Plaintiff 2 and the Defendant did not voluntarily file an application for interview with the Defendant, and thus, the Defendant did not issue a rejection disposition against Plaintiff 1, and thus, the Plaintiff rejected the application on the ground that there was no lawsuit of this case against the Plaintiff 1.

However, according to the records of this case, it cannot be found that the plaintiff 1 sought revocation on the premise that the defendant's rejection disposition is against his own identity as the other party. Rather, the above plaintiff's rejection disposition itself is against the plaintiff 2, but it appears to the purport of the lawsuit of this case because his legal interests were infringed. Thus, if a third party who is not the other party to the administrative disposition has legal interests as to the cancellation of the administrative disposition, an administrative litigation seeking revocation of the administrative disposition can be filed pursuant to Article 12 of the Administrative Litigation Act (see Supreme Court Decision 87Nu727, Nov. 22, 198, etc.). Meanwhile, under Articles 89 and 18 (1) of the Criminal Procedure Act, the defendant under detention has the right to meet with others pursuant to the provisions of Article 62 and 18 (1) of the Criminal Procedure Act, and the plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's standing to sue is not subject to the plaintiff's right to seek revocation of the plaintiff's standing to sue, etc.

Plaintiff 2’s grounds of appeal are examined.

With respect to the plaintiff 2's claim seeking the revocation of the above rejection disposition by the defendant, Article 18 (1) of the Criminal Administration Act provides that the prisoner may meet with another person after obtaining permission from the warden. Paragraph 2 of the same Article provides that meeting with a person other than his relative shall be limited to the case where necessary confinement is made, and Article 62 of the same Act provides that the provision on the prisoner shall apply mutatis mutandis to the unconvicted prisoner. Thus, Article 18 of the Criminal Administration Act does not apply to the unconvicted prisoner. On the other hand, the necessary usage referred to in Article 18 of the same Act refers to a work, etc. which is helpful to reduce mental and physical suffering due to the defendant's defense preparation, detention, and to the minimum extent of physical suffering. Thus, the plaintiff 2 rejected the plaintiff 2's claim on the ground that the plaintiff 2's request for meeting is legitimate, namely, the purpose of meeting that the plaintiff 2 is an authorized party, and that the plaintiff 1 talks about the position of the parties and future ways.

It is one of the most fundamental freedom of human beings to visit. This is the fundamental right of the Constitution, which includes human dignity and value as well as the right to pursue happiness guaranteed by Article 10 of the Constitution. Moreover, the defendant or suspect under detention is also the subject of such fundamental right. Rather, it is more meaningful to maintain contact with the outside by communicating with another person in the case of a defendant or suspect isolated from the outside by detention. In addition, Article 27(4) of the Constitution, which provides the principle of presumption of innocence, provides that the defendant or suspect under detention has the above fundamental right under the Constitution. Therefore, the right to interview with another person of the defendant or suspect under detention, as prescribed by Articles 89 and 213-2 of the Criminal Procedure Act, is only to confirm the above fundamental right under the Constitution, and it cannot be deemed that the right to interview with the defendant or suspect is established only by the provisions of the Criminal Procedure Act.

However, even if the right to interview with the other party of the detained defendant or suspect is a fundamental right under the Constitution, if necessary for national security, maintenance of order or public welfare, it is clear by the provisions of Article 37(2) of the Constitution that the right to interview with the other party of the detained defendant or suspect may be restricted by law. Specifically, the right to interview with the detained defendant or suspect may be restricted in cases where the right to interview is in violation of the purpose of detention, such as the prevention of escape or destruction

However, even if there is no need for such restriction, limiting the right of interview or imposing excessive restriction on the necessary degree cannot be said to be unconstitutional as it infringes on fundamental rights guaranteed by the Constitution.

In light of the provisions of the Criminal Administration Act, the provision of Article 18 of the same Act concerning interview, etc. of an unconvicted prisoner is also applicable mutatis mutandis to an unconvicted prisoner pursuant to Article 62 of the same Act. However, Article 18(2) of the Criminal Administration Act provides that an interview with a person other than his/her relatives shall be limited to the case where necessary unconvicted prisoner takes place. Thus, even where the above provision applies mutatis mutandis to an unconvicted prisoner, if the concept of “necessary work” is limited to the case where the aforementioned provision is applied mutatis mutandis to an unconvicted prisoner, it would be limited to exceptional cases where meeting with a person other than his/her relatives of the unconvicted prisoner is not permitted in principle. However, as seen earlier, the right to interview with the unconvicted prisoner is guaranteed under the Constitution, and the exercise of the right to interview with another person shall be guaranteed in principle, and it may be limited only exceptionally, in light of the foregoing, at least if the provision of Article 18(2) of the Criminal Administration Act applies mutatis mutandis to an unconvicted prisoner, broad interpretation of the concept of “necessary” should not be deemed as necessary” in principle.

Therefore, the court below held that the defendant's rejection disposition is lawful on the ground that it does not constitute a case where the defendant's above rejection disposition is not a case where the defendant's right to interview held by the defendant under detention or the suspect or the legal principles of "necessary work" under Article 18 (2) of the Criminal Administration Act, which applies mutatis mutandis to unconvicted prisoners, which affected the conclusion of the judgment, is erroneous as it points out this issue.

Therefore, the judgment of the court below is reversed, and the case is remanded to the Seoul High Court. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-dong (Presiding Justice) Kim Sang-ho (Presiding Justice)