(영문) 서울행정법원 2016.7.14.선고 2016구합1134 판결

1. Of the instant lawsuit, the part that the Defendant seeks revocation of each disposition rejecting the disclosure of information pertaining to the information listed in the item of “Dismissal of Information Disclosure” as stated in the “Dismissal of Information Disclosure” by the Plaintiff B and C on December 15, 2015 and the Plaintiff B and C on December 28, 2015 shall be dismissed.

2. On December 15, 2015, the part of each disposition rejecting the disclosure of information listed in the attached Table 1, 2015, excluding the part concerning each information listed in the separate sheet 1, 2015, excluding the part concerning each information listed in the separate sheet 1, 2015, 200.

3. The plaintiffs' remaining claims are dismissed.

4. One fifth of the costs of lawsuit shall be borne by the plaintiffs, and the remainder shall be borne by the defendant.

Purport of claim

On December 15, 2015, each disposition of refusal to disclose information to the Plaintiff on December 15, 2015 (the date of December 3, 2015 stated in the purport of the claim appears to be a clerical error in December 15, 2015), and each disposition of refusal to disclose information to the Plaintiff B and C on December 28, 2015.

Reasons

1. Details of the disposition;

A. D Co., Ltd. (hereinafter referred to as "D") was a corporation established for the purpose of maintaining and managing the 6th underground floor and the 15th underground floor (hereinafter referred to as the "F building") located in Jung-gu, Seoul, and activation of commercial buildings, and reported to the Defendant on November 2, 2000 pursuant to the former Distribution Industry Development Act (amended by Act No. 6959, Jul. 30, 2003; hereinafter the same) on the part from the 2nd underground floor to the 9th underground floor of the F building, and the Defendant accepted the above report and notified D as a superstore manager on November 13, 200.

B. On January 11, 2001, the Plaintiff and A are owners who completed each registration of transfer of ownership for the commercial buildings Nos. 917 and 918 of the F building No. 4, and Plaintiff B is owners who completed the registration of transfer of ownership for the second floor of F building No. 302 of the F building No. 302 on the same day. Meanwhile, Plaintiff C is the lessee who leased the commercial building No. 917 from Plaintiff A on July 17, 2015.

C. The FOF building management body composed of the sectional owners of FO buildings filed a lawsuit against D to seek confirmation against D that D is not in the position of the large store installers and large-scale store managers of the FO buildings, and that the right to collect management expenses for the part from the second to the fifteenth above ground of the FO building is in the FOF building management body. However, on February 17, 2015, some of the judgment against DOF buildings was rendered (Seoul Central District Court 2014Gahap20658), and the FO group filed an appeal.

D. Meanwhile, on December 9, 2015, Plaintiff A requested each of the Defendant to disclose each information described in the separate sheet subject to the claim in the separate sheet on December 9, 2015, Plaintiff B, and C.

E. On December 15, 2015, the Defendant issued a disposition rejecting the disclosure of information to Plaintiff A, and to Plaintiff B and C on December 28, 2015, each of the following: “I notify the public institution of non-disclosure in accordance with Article 9(1)6 and 7 of the Official Information Disclosure Act (hereinafter “Information Disclosure Act”) of the following matters: “I notify the public institution of non-disclosure in accordance with the provisions of Article 9(1)6 and 7 of the Official Information Disclosure Act” (hereinafter “the instant rejection disposition”).

[Ground of recognition] Unsatisfy, each entry of Gap evidence 1 to 6 (including virtual number), and the purport of the whole pleadings

2. Whether the lawsuit of this case is lawful

A. The defendant's assertion

The defendant did not have received the management fee payment form among the information specified in paragraph (2) of the attached list claim item, and the information specified in paragraph (3) of the items subject to the claim of the attached list had already been discarded at the expiration of the preservation period. Therefore, the defendant does not retain and manage

B. Determination

1) The information disclosure system is a system that discloses information held and managed by a public institution. Thus, it must prove that there is a considerable probability that a person seeking the information disclosure will possess and manage the information that is subject to disclosure. In a case where a public institution does not hold and manage such information, there is no legal interest to seek revocation of a disposition rejecting the information disclosure, barring special circumstances (see Supreme Court Decision 2003Du9459, Jan. 13, 2006).

2) However, among the information stated in paragraph (2) of the attached list claim item, the payment of management expenses is not deemed to fall under the documents to be submitted within 20 days from the date on which the superstore manager performed the superstore management business pursuant to Article 7 (1) of the former Enforcement Rule of the Distribution Industry Development Act (amended by Ordinance of the Ministry of Commerce, Industry and Energy No. 236, Jun. 22, 2004; hereinafter the same), i.e., documents proving that it falls under any of the subparagraphs of Article 13 (2) of the Act [see Article 13 (2) of the Act], i.e., the current status of occupant-merchants, articles of association or self-governing rules, or establishment registration certificate, and therefore, there is no reasonable probability that the defendant received management expenses payment statement from D and

Meanwhile, as seen above, the list of shop occupants, which is the information stated in Paragraph 3 of the item subject to the attached list, is included in the documents to be submitted to the defendant by D who intends to manage a superstore under the law as seen above. However, in accordance with the attached Table 2 of Article 15 (1) of the former Enforcement Decree of the Records Management Act (amended by Presidential Decree No. 17698 of Aug. 8, 2002), the preservation period of the records shall be permanent, quasi-permanent and semi-permanent and 20 years which can be preserved until the plaintiffs' request for information disclosure filed after 15 years from the report of the operator of the D large-scale store. Furthermore, according to the document No. 3, according to the records No. 2002, Mar. 11, 2006, the defendant is wholly amended by Act No. 225 of the Public Records Management Act (amended by Presidential Decree No. 825 of Oct. 25, 2006).

In light of the fact that: (a) the document that is deemed to have been partially possessed by the Defendant among the documents that are deemed to have been partially possessed by the Defendant, among the documents that are deemed to have been partially possessed by the Defendant, the document that is deemed to have been discarded as above is deemed to have included the current status of the occupant, excluding the documents recognized by the Defendant. In the end, it is reasonable to view that the information in paragraph (3) of the attached list subject to the claim of the attached list submitted by D is also destroyed as above and that the information in paragraph (3) of the attached list subject to the claim of the Defendant is not currently possessed and managed by the Defendant.

Therefore, the part seeking the revocation of the disposition of this case concerning the payment statement of management expenses and the information stated in paragraph (2) of the attached list among the lawsuit of this case is unlawful as there is no legal interest seeking the revocation of the disposition of this case, since it is about the information not owned and managed by the defendant.

3. Whether each of the instant refusal dispositions regarding the information (excluding the payment of management expenses) listed in paragraphs 1 and 2 of the attached list is legitimate

A. The parties' assertion

1) The plaintiffs' assertion

The Defendant rejected each of the instant dispositions rejecting the Plaintiffs’ request for disclosure of information although each of the information in the items subject to the separate list does not fall under the non-disclosure information under the Information Disclosure Act. Therefore, each of the instant dispositions rejecting the disclosure of information is unlawful.

2) The defendant's assertion

The consent written in paragraph (1), certificate of personal seal impression written in paragraph (2), certificate of business registration, resident registration number, address, etc. entered in the lease contract as stated in paragraph (1) of the attached list constitutes non-disclosure information under the proviso to Article 9 (1) 6 of the Information Disclosure Act because the disclosure of personal information is likely to infringe on the privacy if disclosed. The business registration certificate, lease contract, etc. stated in paragraph (2) of the attached list falls under all information concerning personal management and business secrets, which are favorable to others, and thus constitutes non-disclosure information under Article 9 (1) 7 of the Information Disclosure Act

B. Relevant legal principles

1) In accordance with the main sentence of Article 9(1)6 of the Information Disclosure Act, the information subject to non-disclosure includes not only "personal identification information that determines whether it constitutes information subject to non-disclosure based on the form or type of information, such as name and resident registration number, but also "personally confidential information" due to disclosure of personal information, etc., including "information that may interfere with personal and mental life or make it difficult to freely engage in private life" (see, e.g., Supreme Court en banc Decision 2011Du2361, Jun. 18, 2012). Meanwhile, the purpose of the main sentence of the aforementioned provision is to include not only "personal identification information that determines whether it constitutes information subject to non-disclosure based on the type or type of information under the Act, such as name and resident registration number, but also "information that could interfere with personal and mental life or that could interfere with free privacy" (see, e.g., Supreme Court Decision 201Du2361, Jun. 18, 2012).

2) "Management and trade secrets of a corporation, etc." under Article 9 (1) 7 of the Information Disclosure Act mean all the information about business activities that are advantageous to the disclosure of another person, or all the confidential information about business activities. The decision whether to disclose such information is likely to seriously undermine the legitimate interests of the corporation, etc. It shall be made strictly in light of the legislative intent of the Information Disclosure Act (see Supreme Court Decision 2010Du24913, Apr. 12, 2012).

3) As a result of an examination of illegality of a disposition rejecting the disclosure of information by an administrative agency, the court may order partial revocation of the part concerning the information subject to non-disclosure even if there is no modification to the purport of the request for disclosure, if it recognizes that the information, which was rejected by disclosure, is mixed with the part falling under the information subject to non-disclosure and that is able to be disclosed to the extent that it does not go against the purport of the request for disclosure. The part falling under the information subject to non-disclosure and that can be disclosed can be separated from the part that does not go against the purport of the request for disclosure. It does not mean the case where the two parts can be physically separated, but it does not mean the case where the information in question does not mean the case where it is possible to exclude or delete the technology related to the information subject to non-disclosure and disclose the remaining information, and it is worth disclosure only with the other part (see Supreme Court Decision 2

C. Determination

1) As seen earlier, Plaintiff A and B are the owners of stores located in the F building. Plaintiff C is the lessee of the store in the FF building. Plaintiff C is the lessee of the store in the FF loan, and the FF shopping mall management body composed of the sectional owners of the F building files a lawsuit claiming the existence of the status of the superstore manager against D designated as the superstore manager of the F building, and the lawsuit is in progress.

In addition, Article 13(1) of the former Distribution Industry Development Act provides that superstore operators shall carry out the business prescribed by the Presidential Decree as necessary for the establishment of order of commercial transactions, the protection and convenience of consumers, and the maintenance and management of superstores. Article 13(2) of the former Distribution Industry Development Act provides that where there is a person who directly operates at least 1/2 of the store area in a superstore where the store is sold in lots, the person who directly operates the store shall carry out the business prescribed in the subparagraphs of paragraph (1). Where there is no person who directly operates at least 1/2 of the store area, the corporation (title 1) under the Commercial Act or the Civil Act established with the consent of at least 2/3 of the saleroom occupants, the business cooperative (title 2) under the Small and Medium Enterprise Cooperatives Act established with the consent of at least 2/3 of the saleroom occupants, and the self-management organization (title 3), established with the consent of at least 2/3 of the saleroom occupants (title 4), and Article 7(1) of the former Enforcement Rule provides that a person who performs the business shall submit documents to the Mayor/Do Governor.

In light of the above circumstances, although the information pertaining to individuals, excluding the information specified in paragraphs (1) and (2) of the attached list Nos. 1 and 2, is included in the information pertaining to individuals except for the information specified in paragraphs (3) below, it constitutes essential information to dispute the existence of the operator of a superstore in the F building. It constitutes information deemed necessary for the relief of individual rights, such as the change of the other party who is obligated to pay management fees by the Plaintiffs depending on the status of the operator of a large-scale store in D. Furthermore, since the remaining information includes the information about the management know-how of D or occupant occupants, it is not likely to seriously harm legitimate interests of the corporation, etc. if disclosed (see, e.g., Supreme Court Decisions 2013Guhap593, Sept. 10, 2013; 2010Guhap39038, Apr. 7, 2011).

2) However, it is difficult to view that there is a need to know the above part of the information in order to dispute whether the consenters’ resident registration number and address among the information subject to claim in the attached list No. 1 is a superstore operator’s status in the F building. The above part of the information constitutes information belonging to a third party’s private area. Thus, it is reasonable to view that the above part of the information constitutes information that is likely to infringe on the privacy or freedom of private life if disclosed under the proviso of Article 9(1)6

In addition, among the information stated in paragraph (2) of the item subject to request in the separate sheet, it is reasonable to view that the information on the resident registration number of a certificate of personal seal impression, the shape of seal imprint, the information on the change of address, the resident registration number of a sales contract or lease contract, the resident registration number, address, contact number, the sale price or lease deposit (lease) of a sales contract or lease contract, and the information on the resident registration number of a business registration certificate also is not necessary to be known to dispute the existence of a superstore operator status of the building in this case. The information on the above part corresponds to the information about a third party's personal information, which is likely to infringe on the privacy if disclosed, or the information about the business and business secrets of a corporation, organization, or individual, which is likely to infringe on the privacy or freedom if disclosed under the proviso of Article 9 (1) 6 of the Information Disclosure Act, or the information that is deemed likely to infringe on the legitimate interests of a corporation

3) Therefore, each of the instant rejection dispositions pertaining to the information (excluding the information stated in the items of "disclosure" in the attached list) listed in paragraphs (1) and (2) of the attached list is lawful as it is related to non-disclosure information pursuant to the proviso of Article 9(1)6 and 7 of the Information Disclosure Act, and each of the instant rejection dispositions pertaining to the remaining information is unlawful.

4. Conclusion

Therefore, among the lawsuit in this case, the part of the defendant's claim for revocation of each disposition rejecting information disclosure as to information as stated in the "attached List" dismissed on December 15, 2015 to the plaintiff A, the plaintiff B, and C on December 28, 2015 is all unlawful. Thus, it is dismissed. The plaintiffs' claim except this is justified within the scope of the above recognition, and it is accepted as it is reasonable, and the remaining claims of the plaintiffs are dismissed as it is without merit. It is so decided as per Disposition.