[1] Whether the record of the summary of the interview at the time of interview with the prisoner and his/her defense counsel and whether the correctional officer's permission to exclude the participation of the prison warden belongs to the discretionary matters of the relevant administrative agency

[2] The case holding that it is difficult to view that the detention house head's act of not permitting a prisoner's meeting without a correctional officer's participation violates the essential contents of the general meeting right and the right to a trial, thereby significantly lacking validity under social norms

[3] Whether Article 62 (3) 3 of the Enforcement Decree of the Criminal Administration Act is unconstitutional or unlawful beyond the limit of delegated legislation (negative)

[4] The case holding that in case of some letters sent by a prisoner or an outside person to an outside person, the delivery of such letters may be restricted as they fall under "a case where it is especially improper for comparison or treatment" under Article 18-2 (2) of the Criminal Administration Act in light of the purpose and contents of the letter, and the remaining letters do not constitute grounds for non-permission of the delivery of letters, and thus the disposition of non-permission of the dispatch of such letters is unlawful

[5] Whether the statute of limitations under Article 145(2) of the Enforcement Decree of the Criminal Administration Act prohibiting writing during the period of forfeiture exceeds the limits of the delegated legislation, or is unconstitutional or unlawful as it violates the principle of prohibition of excessive drawing (negative)

[6] The case holding that since the prison warden has a duty to permit writing rights for a prisoner during the execution period of a disciplinary measure or during the investigation period to appeal the disciplinary measure within the necessary and minimum scope, the act of refusing the prisoner's application for writing in violation of the above duty is unlawful beyond the discretionary power

[1] According to Articles 18 and 66 of the Criminal Administration Act and Articles 54 and 58 of the Enforcement Decree of the same Act, in principle, a correctional officer shall not participate in, hear or record meetings with an unconvicted prisoner and his/her defense counsel. However, in cases of meetings with an inmate and his/her defense counsel, the warden may exceptionally determine whether the meeting constitutes an interview with the inmate and his/her defense counsel, and allow the correctional officer not to participate in the correctional officer's participation. Thus, the purport of the above provisions is to prevent acts detrimental to the rules and order of the correctional institution, such as the receipt of illegal goods, etc., and to prevent other acts detrimental to the rules and order of the correctional institution and other acts detrimental to the purpose of confinement. In light of the above, it is reasonable to view that the extent of restriction belongs to the discretion of the relevant administrative agency, such as the prison warden, to the extent that it does not infringe the essential contents of the general right of interview.

[2] The case holding that it is difficult to view that the detention house head's act of not permitting a prisoner's meeting without a correctional officer's participation violates the essential contents of the general meeting right and the right to a trial, thereby significantly lacking validity under the social norms

[3] According to Article 18-2 (2) of the Criminal Administration Act, the warden must permit correspondence unless there is "any reason especially inappropriate for the purpose of edification or treatment", and according to Article 18-2 (6) of the same Act, it is delegated to the Presidential Decree matters concerning the restriction of correspondence. Thus, it is reasonable to see that each of the above subparagraphs of Article 62 (3) of the Enforcement Decree of the Criminal Administration Act, which provides for the reason for the restriction of correspondence, is embodying "any reason especially inappropriate for the restriction of correspondence". Among them, if the above subparagraph 3 includes clearly false facts concerning the treatment or other operational conditions of the prison, it is highly dangerous to harm the safety and the maintenance of order in the prison, and even in the above provision itself, it is difficult to see that the above provision goes beyond the limit of Article 18-2 of the Criminal Administration Act.

[4] The case holding that where a prisoner's intended purpose of sending correspondence to an outside person is to instigate other prisoners to disturb the correctional order or to interfere with the correctional order by distorted treatment in the prison, or where there is a specific risk of undermining the correctional order by objectively determining the contents of the correspondence, the dispatch of correspondence can be restricted because it constitutes "a case specially inappropriate for the reason of refusal of sending correspondence" under Article 18-2 of the Criminal Administration Act, and it constitutes grounds for rejection of sending correspondence as to part of the correspondence for which the prisoner intended to send correspondence is recognized as the above purpose and risk, and even if there is somewhat inaccurate or exaggerated expression of the rest of correspondence, it cannot be deemed that the above danger exists as a whole, and thus, the disposition of sending the correspondence is unlawful.

[5] According to the proviso of Article 145(2) of the Enforcement Decree of the Criminal Administration Act, when the warden deems it particularly necessary for edification or treatment, it is reasonable to permit meeting, correspondence or reading of books. In this case, meeting, correspondence or reading of books shall be deemed as an example of permission. Therefore, it shall not be deemed as unconstitutional and unlawful because it exceeds the limit of delegated legislation against Article 145(2) of the Enforcement Decree of the Criminal Administration Act prohibiting writing during the period of forfeiture, or violates the principle of excessive prohibition.

[6] The case holding that since the prison warden has a duty to permit writing to the prisoner during the execution period of a disciplinary measure or during the investigation period within the necessary and minimum scope of objection against the disciplinary measure, the act of refusing the prisoner's application for writing in violation of the above duty is unlawful beyond the discretionary power.

[1] Articles 18 and 66 of the Criminal Administration Act, Article 58 of the Enforcement Decree of the Criminal Administration Act / [2] Articles 18 and 66 of the Criminal Administration Act, Article 58(2) of the Enforcement Decree of the Criminal Administration Act / [3] Article 18-2(2) of the Criminal Administration Act, Article 62(3)3 of the Enforcement Decree of the Criminal Administration Act / [4] Article 18-2(2) of the Criminal Administration Act, Article 62(3) of the Enforcement Decree of the Criminal Administration Act / [5] Article 33-3 of the Criminal Administration Act, Article 145(2) of the Enforcement Decree of the Criminal Administration Act / [6] Article 33-3 of the Criminal Administration Act, Article 145(2) of the Enforcement Decree of the Criminal Administration Act, Article 7(2) of the Rules on the Punishment of Prisoners and Disciplinary Punishment

Plaintiff (Law Firm Han-hee, Attorneys Han-hee et al., Counsel for plaintiff-appellant)

Korea

Seoul District Court Decision 2001Da230519 Delivered on December 27, 2002

April 20, 2004

1. The part of the judgment of the court of first instance against the plaintiff, which orders payment below, shall be revoked.

The defendant shall pay to the plaintiff 2 million won with 5% interest per annum from July 3, 2001 to June 1, 2004, and 20% interest per annum from the next day to the day of complete payment.

2. The plaintiff's remaining appeal is dismissed.

3. 9/10 of the total litigation costs is assessed against the Plaintiff, and the remainder is assessed against the Defendant, respectively.

4. The portion ordering payment under paragraph (1) may be provisionally executed.

The judgment of the first instance is revoked. The defendant shall pay to the plaintiff 25 million won with the interest of 5% per annum from July 3, 2001 to the delivery date of a copy of the complaint of this case, and 25% per annum from the next day to the full payment date.

1. Basic facts

A. Disciplinary action and filing of administrative litigation against the plaintiff

(1) On December 14, 1998, the Plaintiff was sentenced to five years of imprisonment for murder, and was confined in a military prison. On December 14, 1998, the Plaintiff completed the middle school course after being transferred to the Yasan-gu branch of the Daejeon Prison. On February 14, 1999, the Plaintiff was subject to disciplinary action for one month of 1 month of the fine, following the resolution of the disciplinary committee of the Daejeon Prison Wasan-gu Branch of the Daejeon Prison.

(2) Even after the completion of the above disciplinary measure, the Plaintiff asserted that he did not have filed a petition against the Minister of Justice, etc. against Nonparty 1, who filed a complaint against the Minister of Justice, and filed a complaint against the relevant correctional officer, etc. on January 2000. The Plaintiff filed a lawsuit seeking nullification or revocation of the above disciplinary measure with the Seoul Administrative Court No. 2000Gu2470 (which was later transferred to Daejeon District Court 2001Gu817) and transferred it to the Seoul Detention Center on April 11, 2000 for the convenience of the above litigation (after that, the Plaintiff was transferred to the Daejeon Prison on March 24, 2001 and was released on July 9, 2001).

(3) However, the above lawsuit filed by the Plaintiff was dismissed on May 11, 2001 and finalized on June 20 of the same year, and the remaining petition, etc. was dismissed. The plaintiff filed an application for adjudication on the complaint against the pertinent correctional officers (Seoul High Court case No. 2000 seconds44) but this was also dismissed on April 13, 2001.

(b) The correctional officer's participation in meetings of defense attorneys;

(1) On June 24, 200, at the Seoul detention center, the Plaintiff: (a) read the articles of the same kind that Nonparty 2, who was at the time at the time, filed a lawsuit claiming damages against the Defendant on the ground that the right to write a prisoner was infringed; (b) read the articles of the same kind; (c) sent the articles of the same kind to Lee Jong-ho, who prepared the article of the same kind; (d) sent the articles of the same kind to Lee Il-ho, who published the issue of the correctional administration on September 6, 200; and (e) prepared and sent a letter of the sending to Lee Jong-ho, who sent the matter of the correctional administration to Lee Jong-ho, who was the cultural journal, on September 21, 200; (e) however, (e) sought a non-permission disposition from the head of the Seoul detention center.

(2) On November 20, 200, the Plaintiff met with an attorney-at-law who is in charge of the Plaintiff’s acting as an attorney-at-law in the above administrative litigation and made an objection to the administrative litigation, and stated the above reasons for refusing to send each letter as above. The Plaintiff and attorney-at-law requested the Defendant to file a lawsuit seeking compensation for damages on the grounds that it unfairly infringes upon their right to exchange their letters. In order to discuss the litigation strategy during the meeting, the Plaintiff and the attorney-at-law requested the officer of the Seoul detention center who is the actual counterpart to the above lawsuit to refrain from participating in the correctional officer of the Seoul detention center.

(3) A prison officer of the Seoul detention center did not report to the head of the Seoul detention center on the Plaintiff’s request by the Plaintiff and the attorney-at-law to the extent that the Plaintiff’s case does not constitute an exception that may not be a correctional officer’s participation. A prison officer of the Seoul detention center

(c) Disapproval of delivery of letters and writing documents;

(1) On December 200, the Plaintiff appointed an attorney-at-law and filed a lawsuit claiming damages against the Republic of Korea as Seoul District Court No. 2000 Ghana277324, supra, against the Republic of Korea.

(2) On March 29, 201, the plaintiff in the above lawsuit filed with Daejeon Kim Young-young, who is a member of the Human Rights Campaign. The issue of unjust disciplinary action is an important issue that should be dealt with at the level of human rights against the State, such as refusal of the newsletter and establishment of the movement direction, and it is possible to actively consider the letter (hereinafter referred to as the "first letter") that contains a close cooperation with the President, and on April 9, 201, the above Kim Young-young would not be allowed. It is so long as the 4th anniversary of its submission of a petition to the President for the above 5th anniversary of his or her absence of fixed permission. It is so long as the 5th anniversary of his or her submission of a petition to the President of the Korea Correctional Court (hereinafter referred to as the "No. 20th anniversary of his or her submission of a petition to the President of the Korea Correctional Association." The issue is that he or she will not be able to communicate with the President of the Republic of Justice.

(3) On February 16, 200, the above Kim Young-young published the plaintiff's lawsuit against the plaintiff on December 14, 200, February 13, 2001, February 14, 2001, February 15, 2001, February 16, 2001, and February 16, 2001, the "human rights news" and the letter (hereinafter "six letters") were sent to the plaintiff. On December 14, 2000, the above Kim Young-young published the article related to the plaintiff's lawsuit against the plaintiff's lawsuit, the article related to the plaintiff's complaint, the article related to the plaintiff's release from prison, and the article related to the plaintiff's correction of the defendant's complaint from the U.S.'s branch office in the U.S. on May 14, 200, the article criticizes the plaintiff's article's correction of the defendant's human rights, and the article's correction of the plaintiff's article is inappropriate.

(4) However, the Plaintiff prepared a letter Nos. 2, 3, 4, and 5 among the papers mentioned in the above paragraph (2) and prepared and kept a copy of the original letter to the head of prison without permission from the head of prison.

(5) Thereafter, on June 26, 2001, the Plaintiff sought to send a preparatory document stating the fact that the Plaintiff was not allowed to send each letter of correspondence as stated in the above Paragraph (2) and a copy of the pen which contains the contents of the letter as stated in the above Paragraph (4) (hereinafter referred to as “the first written document”) to the Attorney-hee, but on June 29, 2001, the Plaintiff was allowed not to send the first written document of this case attached to the said written document by the head of Daejeon Prison on the ground that the copy of the non-delivery of the letter was not stored in accordance with due process.

(6) On July 4, 2001, the Plaintiff applied for the dispatch of a letter to an attorney-at-law or higher who is an attorney-at-law (hereinafter referred to as “second-time document”). However, without regard to the contents of the lawsuit, the head of the Daejeon Correctional Institution, without regard to the above documents, includes the contents such as “the Plaintiff is deprived of all rights in a disciplinary ward” related to the disciplinary investigation that was received by the Plaintiff at that time, and the contents such as “the copy of the attached document, the date of confinement, the date of seizure, the witness’s statement, etc., shall not be informed of the case under a disciplinary investigation, and the case under a disciplinary investigation shall not be notified, and a new document shall not be prepared and sent on the same day, and the above documents shall not be included in the contents related to the disciplinary investigation, but shall not be included in the previous statement, and shall not be included in the contents of the refusal of the dispatch and the contents of the above paragraph (5).

(7) Meanwhile, on August 10, 2001, the plaintiff was sentenced by the above court to the plaintiff on August 10, 2001, and the defendant appealed to the Seoul District Court (No. 2001Na57883) but was dismissed on June 20, 202, and the above judgment became final and conclusive around that time.

(d) Disapproval of writing during the period of disciplinary action and the period of disciplinary investigation;

(1) On February 9, 2001, the Plaintiff, who was under guard in the Seoul detention center, was found to have been subject to the autopsy on February 9, 2001. At the time of the autopsy, the Plaintiff discovered magazines and religious-related books that the Plaintiff was in his custody and received an investigation as illegal goods, the Plaintiff stated that it is excessive to conduct the autopsy three times a day, and on February 22, 2001, the head of the Seoul detention center imposed a disciplinary measure of 45 days a fine on the Plaintiff on the ground of disturbance.

(2) On February 22, 2001, the Plaintiff filed an application for the suspension of the effect of a disciplinary measure against the above disciplinary measure, an administrative litigation complaint, and a written application for an administrative appeal (hereinafter referred to as “application for writing in the first written application”), but the head of the Seoul detention center did not allow the applicant to write it after the completion of the disciplinary measure on the grounds that the applicant cannot write it out during the period of the execution of the disciplinary measure. The Plaintiff drafted an administrative appeal claim against the above disciplinary measure on April 2, 2001 after the completion of the disciplinary measure.

(3) On March 24, 2001, the Plaintiff was transferred to Daejeon Correctional Institution, and was rejected on June 28, 2001. The Plaintiff was subject to a disciplinary investigation on the ground that the Plaintiff possessed the letter and the letter written on June 28, 2001, and possessed a see pen without permission, and was subject to a preliminary disposition application, an administrative litigation, etc. before receiving the disciplinary decision, but was rejected on July 3, 2001. The Plaintiff was subject to a disciplinary measure on July 6, 2001.

[Based on Recognition: Evidence No. 1, Evidence No. 2-1, evidence No. 2-2, evidence No. 3-1, evidence No. 4-2, evidence No. 5, A, 6, 7, 9, 10, evidence No. 11-1, 2, Eul evidence No. 11-2, Eul evidence No. 1, 2-2, Eul evidence No. 4-1 through 6, evidence No. 5, 6, 7, evidence No. 11-1, 1-2, Eul evidence No. 12 through 17, evidence No. 18-1, 2, Eul evidence No. 19, evidence No. 20-1, evidence No. 21-2, evidence No. 23, 24, 25-1, witness No. 37, evidence No. 5-27, and evidence No. 1-1, evidence No. 37, and evidence No. 5 of the court of full trial

2. The parties' assertion

A. (1) The Plaintiff, as the cause of the instant claim, has no particular problem with the maintenance of order or other edification of the correctional institution to appoint an attorney-at-law to have an interview with the Plaintiff for the purpose of claiming compensation for damages, the head of the Seoul detention center, like the Plaintiff’s general interview at the time of meeting with the attorney-at-law, violates the right to a fair trial because the Plaintiff could not have sufficient counsel with the attorney because the contents and strategies of the lawsuit would be leaked in advance. (2) Article 62(3)3 of the Enforcement Decree of the Criminal Procedure Act restricting the right to exchange correspondence goes beyond the limit of delegated legislation, and is unconstitutional and unlawful, and even if not, the prisoner has the right to send out his/her correspondence prepared by the attorney-at-law or receive his/her correspondence from the outside, barring any justifiable reason under the Criminal Procedure Act, and each of the above correspondence violated the Plaintiff’s right to request for a fair trial by sending and receiving the above correspondence, and thus, the Plaintiff did not have any violation of the Plaintiff’s right to request for disciplinary action against the Defendant 2.

B. As to this, the defendant (1) under the Enforcement Decree of the Criminal Administration Act, a prisoner may meet with other persons by obtaining permission from the warden, and the warden is subject to restrictions on meeting hours, frequency, records, etc., and the defendant's behavior at the time of meeting. In light of the plaintiff's behavior (the plaintiff's behavior as to the legitimate disciplinary disposition of the defendant was fabricated to cause the plaintiff's human rights, it does not constitute exceptional cases where the plaintiff can have an interview without a correctional officer's participation. (2) The above 1 through 5 correspondence does not indicate any false fact as to treatment within the prison without a correctional officer's participation, and thus, it does not constitute a violation of the law that the plaintiff's right to request for a correction without a prison officer's participation. (3) The above 1 through 5 correspondence does not constitute a case where the plaintiff's request for a correction of the order and treatment of the above false fact and his litigation relation without a prison officer's participation in a daily newspaper or news article, and thus, it is likely that the plaintiff's treatment of the above 6th and 1000 correctional correspondence.

3. Determination

A. Determination on the assertion that a correctional officer’s participation is illegal

(1) Relevant provisions

Criminal Administration Act

Article 18 (Meeting)

(1) Prisoners may meet with other persons by obtaining permission of the relevant warden.

(2) The warden shall grant permission referred to in paragraph (1) unless there exist any specially improper reasons for the edification or treatment.

(3) Any warden may have a correctional officer participate in an interview with a prisoner: Provided, That this shall not apply to an interview with a defense counsel provided for in Article 66 (1).

(4) The frequency, time and place of meetings, participation in meetings and other matters necessary for meetings shall be prescribed by Presidential Decree.

Article 66 (Interview with Defense Counsel and Correspondence)

(1) In cases of an interview of an unconvicted prisoner with his/her defense counsel (including a person who desires to become his/her counsel; hereinafter the same shall apply), a correctional officer shall neither participate nor listen to or record the details thereof: Provided, That the correctional officer may monitor the unconvicted prisoner at

(2) omitted.

Enforcement Decree of the Criminal Administration Act

Article 54 (Interview Hours) The meeting hours of prisoners shall not exceed 30 minutes: Provided, That this shall not apply to a meeting with a defense counsel.

Article 58 (Recording, etc. of Interviews)

(1) Where any person applies for an interview with a prisoner, the relevant warden shall record his/her name, occupation, address, age, and relation with the prisoner, notify the person permitted to have the interview of the cautions, and record the summary of the interview at the time of the interview: Provided, That where the applicant is a defense counsel for the case in question, the relevant warden shall record only his/her name and address.

(2) Any warden may permit a prisoner falling under any of the following subparagraphs to have an interview without recording the summary of the interview and attending the interview:

1. A convicted prisoner who has served one-third of his/her prison term (seven years in cases of imprisonment for life) and has excellent performance in prison;

2. A minor unconvicted prisoner who is deemed not likely to destroy evidence;

3. Other persons who are deemed to be specially necessary for the edification.

(3) Where a prisoner or an interviewee commits an act falling under any of the following subparagraphs while meeting, the relevant warden may have a correctional officer restrain him/her from meeting and where he/she refuses to comply with such order, the relevant warden may have a correctional officer terminate the meeting:

1. Where he instigates or encourages a crime;

2. Where it threatens the security and order of the correctional institution, etc., such as destroying evidence or attempting to flee.

3. Where any false information about the treatment of prisoners and other operational status of correctional institutions, etc. is disseminated;

4. Where he violates the provisions of the Act and this Decree.

(2) Determination:

According to the above relevant provisions, in principle, a correctional officer shall not participate in meetings with an unconvicted prisoner and his/her defense counsel or listen to or record the contents of meetings. However, in meetings with an unconvicted prisoner and his/her defense counsel, the warden may exceptionally determine whether the meeting falls under the case where the warden may have an interview without the participation of the correctional officer and decide on whether the meeting is a case where the warden may have an interview without the participation of the correctional officer. The purport of the above provisions is to prevent acts detrimental to the rules and order of the correctional institution, such as acceptance of illegal goods, etc., or other acts that interfere with the purpose of confinement, or to prevent escape and other acts that interfere with the purpose of confinement, and the restriction on meetings with an unconvicted prisoner in light of the inherent status of the person who is punished for imprisonment, it is reasonable to view that the degree of restriction belongs to the discretion of

In light of the above, the plaintiff's behavior (No. 8-1, No. 9, and No. 43) of the plaintiff's defense counsel's request for a lawsuit against the defendant to seek compensation for damages, and the correctional officer requested the defendant to attend the meeting. The plaintiff's request is not reported to the head of the Seoul detention center, and the defendant's continuing participation in the meeting is not limited to the participation of the correctional officer except for the defendant's participation in the meeting, considering that the plaintiff and the attorney's abnormal reception from the defendant did not have an interview with the correctional officer from the beginning, the plaintiff's request for a correctional officer's participation in the meeting without a correctional officer's participation in the meeting, and it is hard to see that the defendant's request for a correctional officer's participation in the meeting and the other party's request for a correctional officer's participation in the meeting is illegal. The plaintiff's behavior (the plaintiff's request for a correctional officer's participation in the meeting) during the period of meeting (the plaintiff's request for a correctional officer's participation in the correction center).

B. Determination as to the act of sending or refusing to receive letters

(1) Relevant provisions

Criminal Administration Act

Article 18-2 (Correspondence)

(1) Prisoners may exchange and receive correspondence with other persons with permission of the relevant warden.

(2) The warden shall grant permission referred to in paragraph (1) unless there exist any specially improper reasons for the edification or treatment.

(3) Any warden may inspect correspondence of prisoners: Provided, That this shall not apply to correspondence with a defense counsel referred to in the main sentence of Article 66 (2) other than each subparagraph.

(4) The censorship, dispatch and delivery of correspondence shall be done promptly.

(5) A correspondence, the delivery of which is not permitted by a warden, shall be destroyed: Provided, That where it is deemed improper to destroy such correspondence, it may be delivered to the principal upon his/her release.

(6) Matters necessary for censorship and restriction of correspondence shall be prescribed by Presidential Decree.

Article 33 (Inspection of Newspapers and Books)

(1) Prisoners may apply for purchase and inspection of newspapers or books at their own expense.

(2) The relevant warden shall permit the purchase and inspection of newspapers or books which are applied for by prisoners under paragraph (1) unless there exist any grounds such as impairing the safety and order of correctional institutions, etc. or deemed especially inappropriate for edification.

Article 66 (Interview with Defense Counsel and Correspondence)

(1) omitted.

(2) Correspondence between an unconvicted prisoner and his/her defense counsel shall not be examined: Provided, That this shall not apply to any of the following cases:

1. Where the other party to a correctional institution, etc. is unable to identify a defense counsel;

2. Where there are reasonable grounds to suspect that correspondence includes narcotics or other items prohibited from possession, or includes contents contrary to the rules of escape, destruction of evidence, correctional institutions, etc., destruction of order, or other penal regulations;

Enforcement Decree of the Criminal Administration Act

Article 62 (Inspection of Letters)

(1) Any warden shall inspect correspondence sent and received by prisoners (excluding correspondence with a defense counsel provided for in the main sentence of Article 66 (2) of the Act): Provided, That a prisoner's correspondence falling under any subparagraph of Article 58 (2) need not inspect it.

(2) omitted.

(3) Where the contents of any letter censorshipd as provided in the main sentence of paragraph (1) fall under any of the following subparagraphs, the warden shall not permit the dispatch or delivery of such letter. In this case, any letter, the dispatch of which is not permitted, shall be discontinued after the relevant prisoner has been notified of the reason therefor:

1. Where it conflicts with statutes;

2. Where it attempts to flee, destroy evidence, or bring in unauthorized goods;

3. Where it includes any obvious false information about the treatment of prisoners and other operational status of the correctional institution, etc.

4. Where it might be detrimental to the security and order of correctional institutions, etc.

(2) Determination:

(A) The purpose of detention for prisoners is to isolate prisoners from society to deprive them of their freedom and to renew their edification. The confinement facility is inevitable to impose certain restrictions on the receipt of correspondence or delivery of written documents in order to achieve the purpose of detention and maintain discipline and order as a facility for collective management of multiple prisoners. However, the above restrictions on correspondence against prisoners can only be made by the law and lawful order delegated by law as well as on the general public. The following is examined as to whether Article 62(3)3 of the Enforcement Decree of the Criminal Administration Act exceeds the limit of delegated legislation and the first and sixth letters constitute grounds for refusal of dispatch and receipt under the Criminal Administration Act and the Enforcement Decree of the same Act.

(B) First, according to Article 62 (3) 3 of the Enforcement Decree of the Criminal Administration Act and Article 18-2 (2) of the Criminal Administration Act as to whether correspondence is unconstitutional or unlawful because it goes beyond the limit of delegated legislation, and as seen in the above relevant provision, the warden must permit correspondence unless there is any particular improper reason for edification or treatment. According to Article 62 (6) of the same Act, matters concerning the restriction of correspondence are delegated to the Presidential Decree. Thus, it is reasonable to see that each item of Article 62 (3) of the Enforcement Decree of the Criminal Administration Act, which provides the reason for restriction of correspondence, has specified the above "in particular inappropriate reason for edification or treatment", and if it falls under "where it is highly dangerous to harm the security and maintenance of order in prison" and it is difficult to limit the violation of Article 18-2 (3) of the Criminal Administration Act to cases where there is any clear false fact about the operation status of prisons such as treatment of prisoners and other prisons.

(C) The case holding that it is reasonable to restrict sending of correspondence on the ground that the above correspondence constitutes "an unreasonable correction order" under Article 18-2 of the Criminal Administration Act where the purpose of sending correspondence to outside prisoners is to distort treatment in prison because it is to cause harm to correction order or to interfere with correction order by objectively judging the contents of correspondence, or where there is a specific danger that the correspondence may interfere with correction order," and it is hard to see that the above correspondence constitutes "an inappropriate case for delivery of correspondence" under Article 18-2 of the same Act, and it is hard to see that the above correspondence was sent during the lawsuit seeking nullification of disciplinary measures or revocation of delivery of correspondence, etc., which the plaintiff raised against the above correspondence received in the detention center, or that it is hard to see that the above correspondence constitutes "an incorrect correction order" or "an incorrect correction order for the purpose of receiving correction order, such as an incorrect correction order for the above disciplinary measures and other reasons." However, it is difficult to see that each of the above correspondence constitutes an unlawful correction order or correction order of each correctional order.

Therefore, in this case, there is no evidence to acknowledge that there is grounds for restrictions on dispatch of each of the above correspondence, as seen earlier, it is unlawful for the defendant to deny the sending of each of the above correspondence to the plaintiff.

(D) Next, with respect to the refusal of the sending of the letter No. 5, which is a Korean journalist, to the sending of the letter No. 5, which is a Korean journalist, the plaintiff's health team, the contents of the letter No. 5, the statement No. 1, the statement No. 2000, the statement No. 2000, the statement No. 200, the plaintiff submitted a petition to the disciplinary committee, but the petition No. 200, the statement No. 300, the statement No. 200, the statement No. 30, the statement No. 200, the statement No. 20, the plaintiff's opinion No. 8, which was issued on May 6, 1999, did not contain any reasonable grounds for rejection of the plaintiff's petition No. 2, the plaintiff's request for a non-prosecution disposition against the above disciplinary measure, and the plaintiff's request for a non-prosecution disposition against the above disciplinary officer, which was rejected after the plaintiff's appeal No. 2 was dismissed.

(E) Lastly, Kim Young-young's act of refusing to send the letter to the plaintiff, which was sent by Kim Young-young to the plaintiff, cannot be deemed as a newspaper or a book under the Criminal Administration Act. Thus, according to the above facts, the above newsletter's contents include the plaintiff's unilateral assertion that he was subject to disciplinary action due to another prisoner's false report, but it cannot be deemed that there is a specific danger that the overall contents of the letter include false facts, or that it obstructs the order in the prison, or causes other prisoners to instigate, and according to the Gap evidence No. 10, it can be acknowledged that the Seoul Bar Association selected a voluntary witness for human rights movement under the Enforcement Decree of the Criminal Administration Act, on the ground that he faithfully performs the role of replacing human rights so that he/she files and supervises various cases of human rights violations in the Seoul Bar Association. Thus, it is illegal that the above newsletter is a publication under the above human rights, and that the correction administration and the contents of the above newsletter are not issued to the plaintiff for the reason that it violated the Criminal Administration Act.

C. Determination as to the denial of sending trial records

(1) Relevant provisions

Criminal Administration Act

Article 33-3 (Writing)

(1) Prisoners may either prepare documents or drawings or write a literature, science and other matters with permission of the warden: Provided, That this shall not apply where the details thereof fall under any of the following subparagraphs:

1. Where it is likely to undermine the security and order of correctional institutions, etc.;

2. Where it is improper for the edification of prisoners.

(2) Matters necessary for the management of writing utensils, time and place for writing, keeping of written documents, etc. and submission thereof to the outside shall be prescribed by Presidential Decree.

Enforcement Decree of the Criminal Administration Act

Article 67 (Provisional Holding, etc. of Writing Documents, etc.)

(1) omitted.

(2) Where a prisoner intends to mail out documents, etc. written by him/her or to carry them out at the time of his/her release, the relevant warden shall permit it except where the details thereof fall under any subparagraph of Article 33-3 (1) of the Act and Article 62 (3) 1 through 3 of this Decree. In such cases, unauthorized documents, etc. shall be discarded after notifying the relevant prisoner of the reasons therefor.

(3) omitted.

(4) Other matters necessary for writing by prisoners shall be prescribed by the Minister of Justice.

(2) Determination:

(A) First, as to the Plaintiff’s refusal to send the first written document (written copies) which was rejected on June 26, 2001, the Plaintiff cannot be deemed to have the same ground for restriction (Article 33-3 of the Criminal Procedure Act and Article 67 of the Enforcement Decree of the same Act stipulate the same ground for restriction (the same ground for restriction as the case of correspondence) as well as the same ground for restriction (Article 33-3 of the same Act, and Article 67 of the same Act provides the same ground for restriction as the case of delivery of written documents). In addition, as to the Plaintiff’s refusal to send the original written document as circumstantial evidence for the Plaintiff’s refusal to send the document, the Plaintiff’s refusal to send the document should not be deemed to have been unlawful, since the Plaintiff’s refusal to send the document cannot be deemed to have been unlawful for the same purpose as the previous document’s refusal to send the document, as long as the first written document was for the Plaintiff’s refusal to send the document as circumstantial evidence for the Plaintiff’s refusal to send it.

(B) Next, in light of the fact that the plaintiff tried to send the above document to an attorney-at-law on July 4, 2001 but refused to send the document, it is difficult to view that the above document constitutes "where the plaintiff's second document contains clear false facts about the treatment of the prisoner or other operational status of the correctional institution, etc." or "where the plaintiff's second document contains clear facts about the plaintiff's treatment or other operational status of the correctional institution, etc., which is the reason for refusing to send the document, and the contents of the above document include the list of the non-permission to send the document, contents of the removal of newspaper in the Daejeon correctional institution, disciplinary investigation, and contents of the fact that the fact was expressed as disciplinary action, as mentioned above, but the plaintiff tried to send the document in order to explain favorable circumstances, such as the case where the plaintiff's right to exchange correspondence similar to the compensation case is restricted, it cannot be viewed that the above document's act of sending the document constitutes an infringement of the plaintiff's right to send the document."

D. Determination on the refusal of an application for writing

(1) Relevant provisions

Criminal Administration Act

Article 46 (Disciplinary Action)

(1) Where a prisoner commits any of the following acts, disciplinary action may be imposed:

1. Violating the penal provisions of the Criminal Act, the Punishment of Violences, etc. Act;

2. Self-injury.

3. Refusing or neglecting work, education, etc. without justifiable grounds;

4. Manufacturing, possessing, using, giving, taking, or hiding any non-permitted object, such as deadly weapons or alcoholic beverages;

5. Other acts violating the discipline determined by the Minister of Justice.

(2) 3 omitted.

(4) Criteria necessary for imposing disciplinary action shall be prescribed by the Minister of Justice.

Enforcement Decree of the Criminal Administration Act

Article 143 (Confinement of Prisoners Suspected of Disciplinary Action) Any warden shall confine a prisoner under investigation as a suspect of disciplinary action in the protocol.

Article 145 (Execution of Disciplinary Action)

(1) After a disciplinary action is sentenced, the disciplinary action shall be executed without delay.

(2) A person subject to a disposition of forfeiture shall be confined in a disciplinary room and shall be prohibited from meeting, receiving and sending correspondences, telephone conversations, writing, work, exercise, newspapers and books inspection, radio listening, television viewing, and using goods at his/her own expense during the period: Provided, That this shall not apply to the preparation of documents on a lawsuit by an unconvicted prisoner, interview with his/her defense counsel and sending correspondences, and where the warden deems it particularly necessary for edification or treatment, he/she may permit meeting, receiving and sending correspondences or reading books.

(3) omitted.

(4) Where any prisoner is prohibited from meeting and correspondence under the disposition of confinement, the relevant warden shall notify the family members or relatives of the relevant prisoner of such fact: Provided, That this shall not apply where the prisoner does not wish such notification.

Rules on the Punishment and Disciplinary Punishment of Prisoners

Article 7 (Procedures for Investigations)

(1) omitted.

(2) If deemed necessary to investigate the truth of a violation of regulations, any warden may restrict or prohibit meetings, correspondence, telephone conversations, writing, work, sports, newspapers, reading books, radio listening, television viewing, and the use of goods at his/her own expense with respect to the relevant prisoner during the investigation period: Provided, That this shall not apply to preparation of litigation documents by unconvicted prisoners, meetings with defense counsel, and correspondences.

(3) through (6) Deleted.

(2) Determination:

(A) Denial of an application for writing 1 during the period of the execution of the disciplinary action

1) First, according to the proviso of Article 145(2) of the Enforcement Decree of the Criminal Administration Act, which prohibits writing during the period of forfeiture, or in violation of the principle of excessive prohibition, and as to whether it is unconstitutional or unlawful, the warden may allow meeting, correspondence, or reading of books when the warden deems it particularly necessary for edification or treatment. In this case, it is reasonable to deem that meeting, correspondence, or reading of books is permitted as an example of permission (the defendant also permits writing when the defendant himself/herself does not submit a complaint, petition, etc. to the prisoner subject to the disposition of forfeiture under the above provision without delay during the period of disciplinary action). In light of this, it is difficult to deem that the above provision itself exceeds the limit of delegated legislation against Article 33-3 of the Criminal Administration Act, or is unconstitutional and unconstitutional because it violates the principle of excessive prohibition.

2) Next, according to the health problem as to whether the first written application is illegal due to abuse of discretionary authority, and the issue of permission by the warden is a discretionary act delegated to the warden's reasonable decision when comprehensively considering the maintenance of order in the correctional institution and the request for securing the effectiveness of disciplinary action. However, according to the relevant provisions as seen earlier, disciplinary action is determined to be executed without delay after the sentence is imposed, and the person subject to disciplinary action is prohibited from writing, meeting, correspondence, and telephone communications with the outside in reality, and the contact with the outside during the period from the sentence of disciplinary action to the expiration of the period of punishment should be terminated in practice, but the current penal law does not separately provide procedures for objection to the disciplinary disposition itself, so in order to effectively dispute the validity of the disciplinary disposition itself, it is inevitable for the subject to disciplinary action to follow the method of administrative appeal or administrative litigation. In such cases, it appears that the scope of discretionary authority to permit writing or execution of disciplinary action is necessary for the purpose of securing the effectiveness of the disciplinary measure as stated above, and it appears that it is necessary to have been within the period of permission or discretionary authority to permit execution.

In this case, the plaintiff's objection to the disposition of the above forfeiture is the fact that the plaintiff filed an application for the suspension of the disposition of disciplinary action, the complaint of administrative litigation, and the written application for administrative appeal for the preparation of the written application for administrative appeal as seen earlier. It is highly necessary to recognize it for guaranteeing the plaintiff's right to trial, and it constitutes "when it is deemed necessary for comparison or treatment, which is the reason for permission for writing," and thus the defendant's refusal of the first written application is illegal by infringing the plaintiff's right to write

(B) Next, according to Article 7(2) of the Regulations on the Punishment of Prisoners and the Rules on the Punishment of Prisoners with respect to the rejection of an application for writing the second time during the period of a disciplinary investigation, whether writing is permitted or not or not, as in the case of prisoners, or as in the case of prisoners, it is a discretionary act entrusted with the decision of the warden's reasonable judgment. However, Article 46(2) of the Criminal Administration Act provides a fine for not more than 2 months as one of the types of disciplinary measures. This has the same nature as the increase of imprisonment, and in fact, a prisoner in a disciplinary investigation has the status as substantially similar to an unconvicted prisoner. In order to effectively dispute the legitimacy of a disciplinary measure itself, the method of administrative appeal or administrative litigation has no choice but to dismiss the application. In light of the fact that even if an administrative litigation is filed during the period of a disciplinary investigation, it is highly necessary to recognize the right to write a lawsuit, etc. by dissatisfied with the disciplinary measure even during the period of a disciplinary investigation, and thus, it is necessary to permit the prisoner's right to write a disciplinary measure.

In this case, the plaintiff filed an application for provisional disposition, administrative litigation, etc. on July 3, 2001 before receiving a disciplinary decision after receiving a disciplinary investigation, but was rejected, and the plaintiff received a disciplinary disposition on July 6, 2001, which was subject to the disciplinary disposition on July 6, 2001. As seen earlier, it is difficult to deem that there is a need for public interest to deny the plaintiff's application for writing 2. In other words, there is no evidence to recognize that the plaintiff's application for writing 2 would cause special harm to securing the effectiveness of disciplinary action or maintaining order in the correctional institution. Thus, the defendant's rejection of the second written application against the plaintiff is illegal beyond the discretionary power.

E. Scope of damages

Therefore, the defendant's act of participating in the plaintiff's interview with the plaintiff and the attorney-at-law, the act of refusing to send the plaintiff's letter No. 5, the act of refusing to send the letter No. 5 among the first writing documents is legitimate. ② The defendant's act of refusing to send the plaintiff's letter No. 1 through No. 4 and No. 6, the act of refusing to send the letter No. 2, 3, and 4 among the first writing documents, the act of refusing to send the copy of the letter No. 2, 2, and the second writing document, and the act of refusing to make a request for writing No. 1 and 2 is illegal. Thus, it is obvious in light of empirical rule that the plaintiff suffered mental suffering due to the defendant's unlawful execution of his duties. Furthermore, the defendant is obligated to pay consolation money. Further, the defendant is obligated to pay consolation money in consideration of the amount of the above letter No. 5, the contents of the letter No. 1 to the plaintiff's letter No. 2, the circumstance leading to each application and the plaintiff's damage.

4. Conclusion

Therefore, the defendant is obligated to pay damages for delay calculated at the rate of 5% per annum under the Civil Act from July 3, 2001, which is the date of the last illegal act, to June 1, 2004, and 20% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment, as the plaintiff seeks, 2 million won and its equivalent amount of damages for delay. Thus, the plaintiff's claim of this case is justified within the above recognized limit, and the remaining claims are dismissed for reasons. Since the judgment of the court of first instance which partially different conclusions are unfair, part of the plaintiff's appeal is accepted, and the defendant is ordered to pay the amount to the defendant by cancelling the part of the judgment of the court of first instance corresponding to the equivalent amount of damages for the plaintiff, and the remaining appeal of the plaintiff is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Dong-ho (Presiding Judge)