2019Nu44936 Confirmation of illegality of omission

A

Law Firm Open Forest, Counsel for defendant-appellant

Attorney Cho Jae-in

1. The chief prosecutor of the Seoul Central District Prosecutors' Office;

2. President of the National Archives;

Government Legal Service Corporation (Law Firm LLC)

Attorney Seo-jin et al.

Seoul Administrative Court Decision 2018Guhap5395 decided May 17, 2019

November 7, 2019

December 5, 2019

1. The plaintiff's appeal is all dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance court is revoked. It is confirmed that the chief prosecutor of the Seoul Central District Prosecutors' Office does not make a decision on the Plaintiff's request for transfer of copies of Presidential records on April 12, 2018.

It is confirmed that the head of the defendant National Archives of the Republic of Korea did not make a decision on each of the permissions on the request to devise each necessary measure to proceed with the procedures for the designation of the Presidential records protection period as of January 30, 2018 by the plaintiff, and on the request to devise each necessary measure to recover or transfer the copies of the Presidential records as of April 9, 2018 and to proceed with the procedure for the designation of the protection period.

1. Quotation of judgment of the first instance;

The grounds alleged by the Plaintiff in the first instance court while filing an appeal are not significantly different from the contents alleged by the Plaintiff in the first instance court, and even if the evidence submitted in the first instance court is re-examineed along with the Plaintiff’s assertion, the judgment of the first instance court dismissing all the Plaintiff’s lawsuit against

Therefore, the reasoning for this Court regarding this case is the same as that for the judgment of the court of first instance, except for the dismissal as follows. Thus, this Court shall accept it in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

○ From 7th to 21th of the first instance judgment are as follows.

On April 9, 2018, on the ground that the copy of the instant records should be protected as presidential-designated records under the Presidential Records Act, the president of the National Archives of the Defendant, and the chief prosecutor against the chief prosecutor of the Defendant on April 12, 2018, the chief prosecutor of the Defendant shall transfer the copy of the instant records to the chief of the National Archives of the Defendant, and the chief of the Defendant National Archives shall have the copy of the instant records transferred to the chief of the Defendant National Archives of the Defendant. We first examine whether the copy of the instant records constitutes the Presidential records subject to presidential-designated records, and whether the Plaintiff’s legal or logical right to request the transfer thereof is recognized.

(1) In full view of the following circumstances acknowledged by the Presidential Records Act including the purport, language, content, and the purport of the entire pleadings, the copy of the instant records created by the chief prosecutor for the purpose of maintaining a public prosecution in a criminal case shall not be deemed to constitute the Presidential records under the Presidential Records Act.

(A) Article 2 Subparag. 1 of the Presidential Records Act provides that "Presidential records" means records and articles created and received by the President (including acting for the President under Article 71 of the Constitution of the Republic of Korea and the elected persons under Article 67 of the Constitution of the Republic of Korea and Article 187 of the Public Official Election Act), "the Presidential Transition Committee under Article 6 of the Presidential Transition Act (hereinafter referred to as "the Presidential Transition Committee") in relation to the performance of duties by the President (including acting for the President under Article 71 of the Constitution of the Republic of Korea, and the elected persons under Article 67 of the Constitution of the Republic of Korea," and Article 1-2 of the Presidential Records Act provides that "records and articles" means records and articles created and received by the President under Article 3 subparag. 2 of the Public Records Management Act (hereinafter referred to as the "Public Records Act"), "the Presidential symbol of the Republic of Korea, etc.", and Article 3 subparagraph 2 of the Public Service Ethics Act provides that "the documents and audio-visual records of public institutions" refers to administrative records.

Therefore, Presidential records refer to documents created and received by the President, etc. in relation to the performance of the duties of the President. Therefore, if copies of the original presidential records have been created by the agencies, such as the President, and are related to the performance of the duties of the President, such copies shall also constitute Presidential records. However, copies of the records of this case are only those created by the chief prosecutor of the defendant's office for the purpose of maintaining public prosecution for criminal cases, and do not constitute records created by the

(A) Article 16(1) of the Presidential Records Act provides that “The Presidential records shall be disclosed to the public: Provided, That the Presidential records shall not be disclosed if they contain information falling under Article 9(1) of the Official Information Disclosure Act (hereinafter “Information Disclosure Act”); Article 2 Subparag. 2 of the Information Disclosure Act provides that “the disclosure of information means that a public institution allows the perusal of information, provides copies or reproductions thereof, or provides information through an information and communications network under Article 2 subparag. 10 of the Electronic Government Act.” Meanwhile, Article 17 of the Presidential Records Act provides that “the President may separately determine the period in which it may not allow the perusal or reproduction of copies, etc. or may not comply with a request for submission of data if it is disclosed to the public as confidential records related to military, diplomatic, or unification under the Act and subordinate statutes, such as “where consent of at least 2/3 of the incumbent members of the National Assembly is obtained during the protection period, etc.” (Article 17).

In addition, Article 14 of the Presidential Records Act provides that "no person shall destroy, damage, conceal, destroy or leak Presidential records without permission, or take them out to the Republic of Korea", and Article 19 provides that "no person who is or was in charge of the management of Presidential records, or who has access to or perused Presidential records shall divulge any confidential information he/she has become aware of in the course of such management, or any content included in Presidentially designated records during the protection period," and Article 30 provides that "no person shall divulge Presidential records without permission, or remove, conceal, leak, damage, or destroy them overseas (Article 1 and 2), or a person who violates the prohibition of divulgence of such secrets (Article 3)."

As seen earlier, the Presidential Records Act provides that the presidential records shall be deemed as Presidential records even if they are copies of documents by defining the presidential records as documents created and received by the institution, such as the President, in relation to the performance of their duties. In principle, disclosure of the presidential records shall be made public, but it does not provide that copies of the Presidential records shall be uniformly seen as Presidential records. (2) The Presidential Records Act aims to enhance transparency and accountability in the management of the state affairs by prescribing matters necessary for the efficient establishment and operation of the Presidential records, such as the protection, preservation, and utilization of Presidential records, and thereby, it appears that the original records of this case can achieve the purpose of efficient management, such as the protection, preservation, and utilization, etc. of the Presidential records by transferring them to the Presidential Records, and it is difficult to view the original copies of the Presidential records of this case as separate records from the original records and thus, it is difficult to view the contents of the Presidential records to be subject to punishment, such as the disclosure of the Presidential records under the Presidential Records Act and the act of destroying the Presidential records under the Presidential Records Act as being included in the scope of disclosure.

11. 5, 6, and 7. “Inasmuch as it is not recognized that the Plaintiff, like the above, has a statutory or logical right to request the Defendants to transfer the copy of the instant records, as the Presidential records,” “The copy of the instant records does not constitute the Presidential records. Moreover, even if the copy of the instant records falls under the Presidential records, it is not recognized that the Plaintiff had a statutory or logical right to request the Defendants to transfer the copy of the instant records.”

2. Conclusion

Thus, the plaintiff's lawsuit against the defendants shall be dismissed in its entirety. The judgment of the court of first instance is just in its conclusion, and the plaintiff's appeal is dismissed in its entirety as it is without merit.

The presiding judge, the whole judge;

Judges Min Il-young

Judge Lee Jin-hun