(영문) 서울행정법원 2017.4.27.선고 2016구합80366 판결

1. The Defendant’s rejection disposition against the Plaintiff on November 8, 2016 against the revocation of the application for the revocation of the designation of organized violence inmates is revoked.

2. The costs of the lawsuit shall be borne by the defendant.

Purport of claim

The same as the order (the date of disposition written in the purport of the claim, November 11, 2016 seems to be a clerical error).

Reasons

1. Basic facts

A. On March 23, 2016, the Plaintiff was arrested on suspicion of violation of the Korean Racing Association Act, etc. and was detained in the Seoul detention center on March 24, 2016. The first head of the criminal fact of the arrest warrant against the Plaintiff is indicated as follows.

B. On March 24, 2016, the Defendant designated the Plaintiff as organized violent inmates pursuant to Article 198 subparagraph 1 of the Enforcement Rule of the Administration and Treatment of Correctional Institution Inmates Act, on the ground that the Plaintiff’s arrest warrant against the Plaintiff stated that the Plaintiff was an organized violent offender.

다. 원고의 변호인은 서울구치소에 조직폭력수용자 지정 해제를 신청하기 위해 2016. 7. 26. 경 ▣▣▣경찰서에 원고가 조직폭력배 계보에 속해 있지 않다는 사실에 대한 확인을 요청하였으나, 경찰서는 이를 확인하여 주지 않았다 .

D. On October 21, 2016, the sentence of one year and four months was finalized due to the violation of the Korean Racing Association Act, etc. against the Plaintiff. On December 12, 2016, the Plaintiff was transferred to a prison, and is still designated as an organized violence inmate.

E. On October 31, 2016, the Plaintiff filed a civil petition with the Anti-Corruption and Civil Rights Commission to the effect that the Plaintiff is not classified as a organized violence group, and the Defendant responded to the following purport on November 8, 2016 (hereinafter “instant reply”).

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 3, Eul evidence 1 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the lawsuit of this case is lawful

A. The defendant's main defense

It cannot be said that the Defendant’s designation of the Plaintiff as an organized violent inmate causes a direct legal change in the legal status of the Plaintiff, such as that the Plaintiff is directly responsible for or restricted from any statutory obligation or rights. Furthermore, under the penal enforcement law, the right to apply for the cancellation of organized violent inmates was not stipulated, and there is no ground to recognize the right to apply for the cancellation of the organized violent inmates.

Therefore, even if the plaintiff applied for the cancellation of designation as a member of organized violence and the defendant rejected it, it cannot be deemed as a disposition prescribed by the Administrative Litigation Act. Thus, the lawsuit in this case is unlawful

B. Determination

The issue of whether a certain act of an administrative agency can be the subject of an appeal cannot be determined abstractly and generally, and in specific cases, an administrative disposition is an act that directly affects the rights and obligations of the people as a law enforcement with respect to a specific fact conducted by an administrative agency as the subject of public authority, with the mind that it is an act that directly affects the rights and obligations of the people. The decision shall be made individually by taking into account the content and purport of the relevant Acts and subordinate statutes, the content, form and procedure of the act, the actual relation between the act and the disadvantage suffered by interested parties, such as the other party, and the principle of administration by the rule of law, the attitude of the administrative agency and interested parties related to the act, etc. (Supreme Court en banc Decision 2008Du167

2. 13. See, 2013Du20899, etc.)

In light of the above legal principles, considering the following, it is reasonable to view that the act of designating a prisoner as a organized violent inmate and the refusal of a request for revocation of designation as a organized violent inmate constitutes an exercise of public authority as a law enforcement with regard to specific facts. Therefore, the instant reply constitutes a disposition subject to appeal litigation, and the Defendant’s main safety defense on a different premise is without merit.

(1) The head of a correctional institution under the Enforcement Rule of the Administration and Treatment of Correctional Institution Inmates Act (hereinafter referred to as the "Enforcement Rule of the Correctional Institution Act") (hereinafter referred to as the "head of a correctional institution") may manage a person committing narcotics and organized violence differently from other prisoners to the extent necessary for the safety and maintenance of order of the institution. [Article 104(1) of the Administration and Treatment of Correctional Institution Inmates Act (hereinafter referred to as the "Enforcement Rule of the Correctional Institution Inmates Act") [Article 104(1) of the Administration and Treatment of Correctional Institution Inmates Act]; Article 200 of the Enforcement Rule of the Administration and Treatment of Correctional Institution Inmates Act (hereinafter referred to as the "Enforcement Rule of the Punishment Act"); Article 200 of the Enforcement Rule of the Act); Article 201(2) of the Enforcement Rule of the same Act provides that a warden may, if he/she deems that there is a concern for collective treatment with other prisoners in his/her workplace, such as forming a force of voice, etc., he/she may be subject to transfer application (Article 201).

② The designation of organized violence prisoners has the nature of public authority that the defendant unilaterally forces the prisoner in a superior position, and is currently operated in a way that the designation of organized violence prisoners is not cancelled in principle until they are released (main sentence of Article 199(2) of the Enforcement Rule of the Act on Punishment, etc.). Therefore, the effect of the designation has continuity, and the designation has a characteristic of compelling the prisoner designated as organized violence prisoners to accept it.

③ If the refusal of a request for the designation or cancellation of designation of an organized violence inmate is not a subject of an appeal litigation, the person designated as an organized violence inmate is forced, without reasonable grounds, to suffer disadvantages caused by his/her designated act even if he/she is not an actual organized violence offender, and is excluded from the treatment that is benefiting, and is designated as an organized violence inmate even if he/she is not an organized violence offender, and the seal of other colors is affixed thereto, thereby infringing upon the personal interest of other prisoners.

④ In particular, in the instant case, even though the Plaintiff submitted official documents that are not currently subject to management of organized sexual assaulters to the Plaintiff at the time of the instant reply, the instant lawsuit is deemed unlawful since the Plaintiff did not have the right to file an application for revocation of designation as organized sexual assaulters. In light of this, the Defendant appears to have taken the position that, when the Plaintiff secured such official documents and filed an application for revocation, the Plaintiff would not have the right to file an application for revocation of designation, and the Defendant’s decision is not subject to judicial judgment. However, in light of the above, the designation or revocation is directly related to various interests and disadvantages related to the treatment of inmates, and the period of the designation or revocation is set, and therefore, it is also important to protect the fundamental rights of the inmates from infringement of fundamental rights that may be protected in the future by taking the refusal of the designation or revocation as the object of an appeal litigation.

3. Judgment on the merits

A. The plaintiff's assertion

The Plaintiff does not constitute a organized violence offender as provided in Article 104 of the Punishment and Execution Act. Nevertheless, the Defendant designated the Plaintiff as an organized violence inmate, and the Plaintiff responded to the instant case rejecting the Plaintiff’s application for cancellation of the said designation. Therefore, the instant reply was made without any legal basis and thus should be revoked as it is unlawful.

B. Defendant’s assertion

형집행법 시행규칙 제198조 제1호는 ' 체포영장, 구속영장, 공소장 또는 재판서에 조직폭력사범으로 명시된 수용자 ' 를 조직폭력수용자의 지정대상으로 정하고 있다. 원고에 대한 체포영장과 구속영장 범죄사실에는 ' 제주도 조직폭력배 땅벌파의 부두목급 조직원 ' 이라고 명시되어 있고, 형집행법 시행규칙 제198조 제1호의 조직폭력수용자 지정대상은 단순 열거되어 있다. 또한 ▣▣▣경찰서장의 사실조회 회신은 이 사건 답변이 있은 이후의 사실관계에 관한 것으로 이 사건 답변의 적법 여부에 영향을 미치지 않는다. 따라서 원고의 조직폭력수용자 지정 해제 신청을 거부하는 이 사건 답변은 적법하다 .

C. Determination

1) Article 104(1) of the Punishment and Execution Act provides that "a warden shall block contact with other prisoners prescribed by Ordinance of the Ministry of Justice, such as narcotics offenders, organized violent offenders, etc., within the extent necessary for the safety and maintenance of order of the relevant correctional institution, or conduct strict safe guard, as prescribed by Ordinance of the Ministry of Justice.

Article 198 of the Enforcement Rule of the Punishment Act provides that "A person who has organized violence shall be subject to the designation of organized violence prisoners" (Article 198 of the Enforcement Rule of the Punishment Act, but is not specified as organized violence offenders in the arrest warrant, detention warrant, indictment or written decision," "A person who has applied Article 4 and Article 5 of the Punishment of Violences, etc. Act or Article 114 of the Criminal Act (Article 2)", "a person who has committed organized violence (Article 3)" and "a person who is specified as organized violence offenders in the arrest warrant or written indictment or written decision of a judge." In addition, Article 199 (1) of the Enforcement Rule of the Act provides that "a person who has been executed or will be executed during the current living shall be designated as organized violence prisoners, and a warden shall not designate a person who has been subject to deliberation or written decision of the Committee pursuant to Article 198 (1) of the Act until the date the person has been released. The same shall also apply to cases where a person who has been designated as organized violence offender is released.

2) However, considering the following, Article 198 of the Enforcement Rule of the Criminal Procedure Act, the subject of designation as an organized violence inmate under Article 198 of the Enforcement Rule shall be limited to cases where the relevant crime, which caused confinement of prisoners, falls under organized violence crimes or where a prisoner was involved in violence organizations at the time of the commission of the relevant crime

① The purpose of Article 104(1) of the Punishment and Execution Act, which allows organized violent prisoners to be designated as organized violent prisoners and otherwise managed, is to ensure the smooth operation of correctional facilities and proper treatment of prisoners by strictly controlling inmates who are highly likely to disturb the order of confinement.

(2) "A prisoner shall not be discriminated against on the grounds of gender, religion, disability, age, social status, region of origin, nation of origin, nation of origin, physical conditions such as features, medical history, whether married or not, political opinion, sexual orientation, etc. without reasonable grounds." Article 5 of the Execution of Punishment Act shall not be discriminated against on the grounds that the prisoner was an organized violence offender in the past.

③ Article 199(2) of the Enforcement Rule of the Punishment Act provides that the designation of a person designated as a organized violence inmate shall not be revoked until the release is made. In light of the fact that Article 199(2) of the Enforcement Rule of the Punishment Act provides that the designation shall be revoked in cases where the grounds for designation are deemed to have been resolved following the amendment to indictment or the final and conclusive judgment, it is reasonable to interpret the subject of designation as a organized

④ The latter part of Article 199(1) of the Enforcement Rule of the Punishment Act provides that “The same shall also apply to cases where a sentence imposed or to be executed during the current prison life falls under Article 199 subparag. 1 or 2.” The same shall also apply to cases where “the relevant crime causing confinement does not constitute a organized violent crime, or where a sentence imposed or to be executed during prison life is related to a organized violent crime even if the relevant crime was not committed at the time of the relevant crime, it shall be included in the subject of designation of a organized violent person. 3) On the other hand, in an appeal seeking revocation of an administrative disposition, the Defendant, who claimed the pertinent disposition, has the burden of proving the legality of the relevant administrative disposition, has the burden of proof (see Supreme Court Decision 84Nu124, Jul. 24, 1

However, each statement of evidence Nos. 1 and 2 alone is insufficient to recognize that the Plaintiff was involved in violence at the time of the commission of the above crime, or that the Plaintiff’s execution or sentence to be executed during prison life constitutes Article 198 subparag. 1 or 2 of the Enforcement Rule of the Punishment Act. There is no other evidence to recognize otherwise. The crime of violation of the Korean Racing Act and the violation of the Korean Racing Act (gambling, etc.) which caused the Plaintiff’s expropriation does not constitute a crime of organized violence.

오히려 갑 제1, 2호증의 각 기재, 이 법원의 ▣▣▣경찰서장에 대한 사실조회결과와 변론 전체의 취지에 의하여 인정되는 다음의 사정 즉, ① 피고는 원고가 2016. 3 .

24. At the time of admission to the Seoul detention center, there is no fact that the Plaintiff is not a organized violence offender in addition to confirming that the arrest warrant was written as an organized violence offender. ② The arrest warrant and the arrest warrant of the Plaintiff for the violation of the Korean Racing Association Act against the Plaintiff stated the Plaintiff’s first head that “the Plaintiff is a member of the Jeju-do organization violence ship and the wharf level.” However, the first judgment of the court of first instance rendered on July 15, 2016 [the court judgment ○○○○○○○○○, the ○○○○○○○○○○○○○○, the ○○○○○○○○○”)] and on October 2016.

13. 선고된 항소심 판결문 ( ▥▥▥▥▥▥법원 ○○○○노OOOO ) 에는 위와 같은 기재가 빠져있는 점, ③ 이 사건 소송 계속 중 ▣▣▣경찰서장은 2017. 1. 31. ' 원고를 현재 ▣▣▣경찰서가 조직폭력원으로 관리하고 있는지 여부 ' 에 대한 사실조회 촉탁에 대하여 ' ▣▣▣경찰서 조직폭력배 관리대상자에 해당사항 없음 ' 으로 회신한 점 등을 종합하면, 원고는 형집행법 제104조, 형집행법 시행규칙 제198조에서 정하는 조직폭력수용자 지정대상이 아니라고 할 것이다 ( 형집행법 시행규칙 제198조 제1호에서 체포영장 · 구속 영장에 조직폭력사범으로 명시된 수용자를 조직폭력수용자 지정 대상으로 규정하고 있다고 하더라도, 수용자가 조직폭력배 관리대상자가 아니라는 점이 밝혀진 이 사건과 같은 경우에는 위 조항을 문언 그대로 적용하여 단지 체포영장 구속영장에 조직폭력사범으로 기재되었다는 이유만으로 수용자를 조직폭력수용자로 지정하는 것은 허용되지 아니한다 ) .

4) Therefore, the Defendant’s instant reply, which rejected the Plaintiff’s request for revocation of designation as organized violent inmates, should be revoked as it is unlawful.

4. Conclusion

The plaintiff's claim of this case is justified and accepted.