Applicant

The Minister of Justice

Seoul Administrative Court Order 2014Guhap6054 dated October 23, 2014

The decision of the first instance shall be modified as follows:

The respondent shall ship the 36-1 to 38-6 of the minutes of the Attorney Examination and Management Committee on April 26, 2013 and the 2-2-5 of the 12-5 of the 12-5 of the 2014 and the 12-13 of the 36-38 of the 36-38 and the 58-30 of the 58-30 of the 2014.

The remainder of the petitioner is dismissed.

1. Purport of request;

During the period from 2011 to 2014, the respondent shall have all minutes of the Attorney Examination and Management Committee (hereinafter referred to as the "Committee of this case") including the details of deliberation related to the decision of successful applicants of the bar examination 1 to 3 times.

2. Purport of appeal;

The decision of the first instance shall be revoked. The applicant's application shall be dismissed.

1. Facts recognized;

The following facts are clear in records:

A. On June 8, 2014, the applicant filed the instant lawsuit seeking revocation with the Seoul Administrative Court No. 2014Guhap60054 on the following grounds: (a) the applicant applied for the third bar examination and was subject to a disposition rejected by the respondent; (b) the applicant filed the instant lawsuit seeking revocation.

B. On June 27, 2014, the applicant filed an application against the respondent for an order to submit the minutes stated in the purport of the application, and the first instance court accepted the application by the applicant on October 23, 2014.

2. Summary of the parties’ assertion

(a) An applicant;

The respondent has cited a part of the minutes in the purport of the application that he/she keeps through a reply, etc., and the minutes cited as such shall be submitted in accordance with Article 344(1)1 of the Civil Procedure Act. In addition, the respondent may not refuse to submit the remaining minutes that he/she has not accepted pursuant to Article 344(2) of the Civil Procedure Act.

B. Respondent

The respondent merely claims a series of internal review contents and processes concerning decision on successful applicants in the third bar examination via answers, etc., and thus, the minutes recorded in the purport of the application do not constitute a cited document. Moreover, the minutes recorded in the purport of the application fall under non-disclosure information prescribed in subparagraphs 4 and 5 of Article 9 of the Official Information Disclosure Act (hereinafter “Information Disclosure Act”). Therefore, the respondent is not obligated to submit the minutes recorded in the purport of the application.

3. Determination

A. As to the motion for meeting minutes dated April 26, 2013 and April 8, 2014

(1) The term "documents quoted by a party in a lawsuit" under Article 344(1)1 of the Civil Procedure Act includes not only the case where the party admitted the documents themselves as evidence in a lawsuit, but also the documents which are used as the basis or support for his own assertion, referring actively to the existence and content of the documents in order to clarify his own assertion (Supreme Court Order 2006No82 Decided June 12, 2008).

(2) In the instant case, the respondent’s failure to accept the minutes per se of April 26, 2013 and April 8, 2014 in the process of the first instance trial as evidence. However, according to the records, the respondent’s decision to maintain the third attorney examination rate according to the standards for passing the first attorney examination at the meeting of the Committee held April 26, 2013, and the fact that the third attorney examination rate was maintained in accordance with the first attorney examination standards, and that the third attorney examination rate was stated in the third attorney examination standards at the 15th meeting of the Committee held on April 8, 2014 and the third attorney examination standards at the 15th meeting of the Committee held on April 2014, 200 and the 15th meeting minutes at the 15th meeting of the Committee held on April 2013 to 28th meeting minutes at the 14th meeting of the Committee held on April 26, 2014, were not found to have specifically mentioned the contents and the 15th meeting minutes of the Committee from 2 to 36.

(3) However, among the minutes of April 26, 2013, the remainder (the part stating the details of deliberation on the “determination of successful applicants for the second bar examination,” which is the first agenda, and the part stating individual opinions of the committee members, which is not the content of resolution of the committee on the “determination of successful applicants for the second bar examination,” which is the second agenda, after 2013,” and the remainder of the minutes (the part stating the contents of deliberation on the “determination of successful applicants for the third bar examination,” which is the first agenda) of April 8, 2014 does not fall under the cited documents stipulated in Article 344(1)1 of the Civil Procedure Act, which are the second agenda. Furthermore, as seen below, the part pertaining to the “decision of successful applicants for the third bar examination,” which is the second agenda, does not constitute the information subject to non-disclosure under Article 54(1)1 of the Information Disclosure Act.

(4) Ultimately, the applicant’s request for this part is with reason to the extent of seeking an order to submit the two pages 12 through 5, 15, and 12 to 13 out of the minutes of the instant commission’s meeting on April 26, 2013 and the two pages 1 to 38, 6, 58, and 26 through 30, and the minutes of the commission’s meeting on April 8, 2014.

B. As to the remaining minutes

(A) Article 344(2) of the Civil Procedure Act provides that the holder of a document may not, in principle, refuse to submit the document, even if the document does not fall under the document stipulated in Article 344(1) of the same Act; Provided, That “documents kept or held by a public official or a former public official in connection with his/her duties” may be exceptionally refused to submit. Here, “documents kept or held by a public official or a former public official in connection with his/her duties” refers to documents held or managed by a State agency, and disclosure of such official document must be subject to the procedures and methods prescribed in the Information Disclosure Act (see Supreme Court Order 2008Ma546, Jan. 19, 2010).

(B) It is clear that, among the minutes written in the purport of the application, the respondent did not accept them in the case of the minutes excluding the minutes as of April 26, 2013 and the minutes as of April 8, 2014 (hereinafter referred to as “instant minutes”). However, the instant committee was established to reasonably coordinate conflicting or conflicting interests in consideration of the ability and qualities of new attorneys-at-law after the introduction of the law school, as well as the considerable number of successful applicants for the bar examination. However, if the minutes are disclosed, the members participating in the instant committee appear to have passive attitude in freely expressing their opinions by concerns about the awareness of their interest groups or pressure of their interest groups, and as a result, the instant committee’s failure to perform its function properly. In addition, considering such concerns, it is difficult to fully present the details of the instant minutes except for the remaining personal information of the members indicated in the instant minutes, but it is difficult to resolve such concerns in light of the organization of the committee’s minutes and its reasoning.

(C) On the other hand, filing an application for ordering the person holding the document to submit it is one of the methods of filing an application for a documentary evidence. Therefore, the court may not accept the application for a submission order in a case where the document subject to an application for a submission order is deemed unnecessary as a documentary evidence (see Supreme Court Order 2007Ma672, Sept. 26, 2008).

However, in the case of the minutes of the Committee in relation to the selection of successful applicants for the first and second round of the Bar Examination, it is difficult to recognize the necessity of documentary evidence only with the allegations by the applicants and materials submitted. Therefore, the part of seeking an order to submit the above minutes among the applications in this case cannot be accepted in this regard.

4. Conclusion

The instant application is justified within the scope set forth in Paragraph (4) of the above 3.A, and the remainder of the application shall be dismissed as it is without merit. Since the decision of the court of first instance is unfair with a different conclusion, it is so unfair as to modify the decision of the court of first instance like the order.

Judges Yoon Sung-sung(Presiding Judge) (Presiding Judge)