(영문) 서울행정법원 2019.5.17. 선고 2018구합74709 판결

A. On August 5, 2013, in order to resolve conflicts arising in connection with the construction of the power transmission tower in the smuggling area, the Council for Special Support of the Crow Telecommunication (hereinafter referred to as the “Council of this case”) was organized with 21 members, including the representative of residents, the personnel belonging to the plaintiff, the public officials belonging to Yangyang-si, the public officials belonging to the Gyeongyang-si, the public officials belonging to the Ministry of Trade, Industry and Energy, the public officials belonging to the Ministry of Trade, Industry and Energy, and the persons related to the regional National Assembly room

B. Article 9 of the Agreement on the Organization of the Council of this case provides that "The detailed matters concerning the operation, etc. of the Council of this case and the working council may have separate operational regulations as a resolution of the council held by the chairperson." Accordingly, Article 12 of the Regulations on the Operation of the Council of this case prepared as a result of the Council of this case provides that "the executive secretary of the working council of this case shall prepare the minutes of the meeting and have the members read and affix their signatures at the next meeting, and the above executive secretary may record or record the proceedings, and the recorded and videoed materials shall be managed under the responsibility of the above executive secretary, and shall be destroyed en bloc after the completion of the Council of this case."

C. On January 26, 2016, at the 30th meeting of the instant Council, the instant Council decided to terminate the operation of the instant Council, and, in principle, the decision of the instant Council, such as the agreement on the formation of the instant Council, operational regulations, and matters to be resolved, shall be managed by the Plaintiff for ten (10) years, in principle. However, the instant Council’s decision was made that “All minutes and recording records created by the instant Council shall be discarded after the date on which the instant Council ends so that the conflict among the smugglings does not occur

D. On March 29, 2018, the Defendant conducted an inspection of actual condition of the Plaintiff’s records management related to the destruction of the meeting minutes of the instant council. As a result, the Plaintiff’s records pertaining to the Plaintiff’s meeting operation expenses remain in the form of electronic documents, the Plaintiff classified the unit tasks of the instant council into “civil petition”, set the preservation period of ten years, and manages the relevant documents. The meeting minutes and recording records of the instant council were discarded according to the resolution of the 30th meeting. On May 24, 2018, the Defendant requested the Plaintiff to take corrective measures as follows (hereinafter “request for corrective measures”).

The minutes, etc. of the Council on Basic Terms and Conditions are determined as public records to be managed by the Plaintiff as records created in connection with the Plaintiff’s business. The Plaintiff’s destruction without complying with the procedures prescribed by the Public Records Management Act is unlawful. The compliance with the Public Records Management Act, such as non-registration of the minutes of the ○○ Plan on Measures for Terms and Conditions (Request for Correction), setting a preservation direction, etc.- the evaluation and discarding of records; the review of records management specialists and the holding of the Evaluation Council, etc. of records; and the minutes of the destruction procedure prescribed by the Act on the Management of Public Records, such as holding of the Evaluation Council, etc., shall be transferred to the record repository; after the unit task related to registration is newly established in the Integrated Electronic Document Management System after the transfer to the record repository, the records related to the measures to raise the preservation period of the unit task (

[Ground of recognition] Facts without dispute, Gap evidence Nos. 2, 3, 4, and 8, the purport of the whole pleadings

2. The plaintiff's assertion

① The minutes and recording records of the instant council are prepared by the instant council, which is an independent non-corporate body, rather than the Plaintiff, and expected to be discarded, and thus, the Plaintiff did not have produced or received them. Therefore, the Plaintiff does not constitute public records under the Public Records Management Act (hereinafter “Public Records Act”). Therefore, the request for corrective measures in this case made on a different premise is unlawful.

② The instant request for corrective measures is null and void because it is impossible to implement the instant request because it orders the preservation and management of the minutes and recording records, which are already discarded and do not exist.

3. Determination on the defense prior to the merits

A. The defendant's assertion

The instant request for corrective measures constitutes an internal decision-making among administrative agencies that made the Plaintiff, a public institution, and is merely to confirm and urge the obligations imposed on the Plaintiff under relevant statutes, such as the Public Records Act and the Enforcement Decree thereof, and does not have a means to compel the Plaintiff to implement the instant request for corrective measures. Accordingly, the instant request for corrective measures does not constitute a disposition subject to appeal.

B. Determination

1) The term “administrative disposition”, which is the subject of an appeal litigation, refers to an act of an administrative agency under public law, which directly changes in the legal status of the other party or other persons concerned, such as an order to create a right or to bear an obligation, or giving rise to other legal effects, with respect to a specific matter, and an act, etc., which does not directly change the legal status of the other party or other persons concerned, such as an act, arrangement, solicitation, de facto notification, etc. inside the administrative authority, cannot be subject to an appeal litigation (see, e.g., Supreme Court Decisions 2012Du28704, Dec. 11, 2014; 2014Du43974, Mar. 12, 2015)

2) The Public Records Act shall apply to public records, such as records created and received by a public institution in connection with its duties (Article 2). The Plaintiff is a public institution subject to the Public Records Act (Article 3 subparag. 1; Article 3 of the Enforcement Decree). A public institution shall take measures necessary for archives management so that all processes and results in performing its duties can be created and managed as archives (Article 16(1)); when it has created or received archives in the course of performing its duties, it shall take measures necessary for the registration, classification, filing, etc. of such archives (Article 18); preservation period; preservation period; disclosure of archives; confidentiality; access authority; and transfer the archives to the competent record repository, etc. within a certain period (Article 19(1) and (2)); while the Defendant, as the head of the central archives management institution, shall inspect the management status of archives regularly or occasionally (Articles 9(2)7 and 19(7)); where it is deemed necessary to correct the results of inspection, it may request the head of the public institution to take necessary measures (Article 64).

As seen earlier, the purport of the request for the corrective measure of this case lies in transferring the records to the record repository, registering them in the electronic records management system, and re-establishing the preservation period for unit tasks of records. In light of the relevant provisions of the Public Records Act, the request for the corrective measure of this case is that the Plaintiff, as a public institution, demands the Plaintiff to perform the duty of management of public records specifically borne by relevant Acts and subordinate statutes, such as Articles 18, 19(1) and (2) of the Public Records Act, and Articles 20(1), 22, 23(1), 26(1) and (2) of the Enforcement Decree of the same Act, etc., and Articles 20(1), 22, 23(1), and 26(1) and (2) of the Enforcement Decree of the same Act, and thus, it cannot be deemed that the request for the corrective measure of this case imposes a new obligation on the Plaintiff

In addition, the request for the corrective measures of this case is made pursuant to Articles 9(2)7 and 19(7) of the Public Records Act and Article 64 of the Enforcement Decree of the same Act. Even if the plaintiff does not comply with the request for the corrective measures of this case, there is no separate provision that can compel the plaintiff to implement the corrective measures of this case or sanction the refusal to implement the measures of this case. Accordingly, the plaintiff, at the request for the corrective measures of this case, demanded an audit of the plaintiff in the Ministry of Industry and Trade, which is a supervisory agency, to report the result of the implementation of the corrective measures of this case. As a result of the audit, there is concern about criminal punishment of the employee who participated in the minutes of the council of this case and recording records, as the result of the audit, there is concern about receiving low points from the plaintiff and publishing the results of the records management, and there is a penal provision against the person who destroyed, concealed, leaked, or destroyed the records of this case without permission, so the plaintiff can be deemed to have been in fact forced to implement the corrective measures of this case.

Therefore, the request for corrective measures of this case does not constitute an administrative disposition that is subject to appeal litigation.

4. Conclusion

Therefore, since the lawsuit of this case is unlawful, it is decided to dismiss it. It is so decided as per Disposition.