Plaintiff

The Seoul Western District Prosecutor

May 14, 2010

1. On January 28, 2010, the Defendant’s revocation of each decision to disclose information to the Plaintiff as to each information listed in the separate sheet Nos. 1 and 2.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

The following facts are not disputed between the parties, or can be acknowledged by adding the whole purport of the pleadings to the descriptions of Gap evidence 1, Gap evidence 2, Gap evidence 3, Gap evidence 4, Gap evidence 5, Gap evidence 6, and Gap evidence 11.

A. On January 22, 2010, the Plaintiff filed a complaint with the Defendant and filed a request for disclosure of information on the records of the suspected case (hereinafter “information requested for disclosure”), including fraud against Nonparty 1 (No. 2005-type and No. 9838) in Seoul Western District Prosecutor’s Office 2005-type and No. 9838, which became final and conclusive, and each of the suspect’s interrogation records (including the questioning part), the witness’s statement, the list of records, and the part (hereinafter “information requested for disclosure”), other than the personal information of an individual, in the documents sent to Nonparty 2 of the Seoul Western District Prosecutor’s Office 208-type and No. 16899, which became final and conclusive.

B. On January 28, 2010, the Defendant made a decision not to disclose the list of records and the part of the invoice of the case among the information requested for disclosure to the Plaintiff, but to disclose the remainder (hereinafter “nonpublic information”) to the following grounds: (a) pursuant to Article 20-2 Subparag. 3 and Article 22(1)2 of the Rules on the Preservation of Prosecutors’ Offices (hereinafter “Rules on the Preservation of Prosecutors’ Offices”), the complainant may only request perusal and copying of the documents that the complainant stated his/her statement and documents submitted by him/her; and (b) the disclosure of the records constitutes cases where the disclosure of the records is likely to seriously undermine the honor, privacy, safety of life and body, or peace of life of the person concerned (hereinafter

2. Whether the disposition is lawful;

A. The parties' assertion

The defendant asserts that the non-disclosure part of the above decision is subject to the above rule provision, and that the non-disclosure information constitutes "information deemed likely to infringe on the privacy or freedom of an individual if disclosed" under Article 9 subparagraph 6 of the Information Disclosure Act, and that the non-disclosure part of the above decision is lawful on the grounds that the disclosure of court records may infringe on the reputation, privacy, safety of life and body, and peace of life of a person involved in the case or the disclosure of court records under Article 59-2 (2) 3 and 7 of the Criminal Procedure Act.

As to this, the Plaintiff asserts that the part of the non-disclosure decision made by the Defendant is unlawful, since it does not constitute non-disclosure information under Article 9 of the Official Information Disclosure Act (hereinafter “Information Disclosure Act”), since the remaining part of the non-disclosure information, excluding the personal information, is not likely to infringe on the privacy or freedom of individuals even if disclosed.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) First of all, although the rules of prosecutorial affairs were enacted by the Ordinance of the Ministry of Justice pursuant to Article 11 of the Public Prosecutor’s Office Act, all the provisions of the said rules alone do not have legal effect. Even though Articles 20-2 and 22 of the said rules provide for the restriction of reading and copying of records, they merely constitute administrative rules as administrative rules for the internal affairs of administrative agencies due to lack of legal grounds for delegation. Thus, the restriction of reading and copying under the said rules does not constitute “cases provided for non-disclosure by other Acts or orders by other Acts” under Article 9(1)1 of the Official Information Disclosure Act.

In addition, Article 59-2(2) of the Criminal Procedure Act provides that the restriction on perusal and copying of the investigation records which have been concluded as a non-prosecution disposition is not applicable to the instant case where the disclosure of trial records is likely to seriously undermine the honor, privacy, safety of life and body, or peace of life due to the disclosure of trial records among the trial records for which the judgment has become final and conclusive, but the restriction on disclosure of the investigation records which has been concluded as a non-prosecution disposition is not applicable to the instant case. Moreover, the Defendant’s demand for the provision of Article 59-2 subparag. 7 of the Criminal Procedure Act on the grounds of non-disclosure should be deemed to add the grounds for disposition in addition to the original disposition grounds for disposition. However, under the above provision, “where the litigants does not consent to disclosure of trial records” differs from the original

Therefore, the defendant cannot refuse the plaintiff's request for disclosure under the above rules or the Criminal Procedure Act provisions.

(2) The non-disclosure information is subject to disclosure pursuant to Article 9(1) of the Information Disclosure Act, unless there are special circumstances, as the information held and managed by a public institution. However, in this case, the Plaintiff filed a claim for disclosure of the information other than the original personal information, and Article 7(1)6 of the Information Disclosure Act provides that “information pertaining to an individual who can identify a specific person by name, resident registration number, etc. included in the pertinent information is subject to non-disclosure” under the proviso of Article 7(1)6 of the Information Disclosure Act, and “information that is prepared or acquired by a public institution and deemed necessary for the protection of public interest or for the protection of an individual’s rights” under the proviso of Article 7(1)3 of the same Act excludes “information that is recognized as necessary for the protection of an individual’s rights.” The issue of whether disclosure constitutes “information that is deemed necessary for the protection of an individual’s rights” should be determined individually by comparing and comparing the interests of the individual’s privacy protected by the non-disclosure and the interests of the individual’s rights protected by the disclosure.”

According to the result of the court's reading and examination of the information requested for disclosure, among the non-disclosure information, the suspect's name, resident registration number, occupation, domicile, permanent domicile, previous record and disposition by the prosecution, awards and pensions, military service, education, career, family, property and monthly income, religion, membership of political party or social organization, health status and other reference persons' names, resident registration number, residence, contact number, occupation, telephone, address and other personal information are included in the protocol of interrogation of witness's statement, and the protocol of interrogation of witness's statement contains personal information such as the suspect's name, resident registration number, occupation, address, family relation, health status, name of reference person, resident registration number, occupation, address (residential or workplace address) and contact information. Thus, in principle, the name of related persons should be disclosed from the perspective of necessity for disclosure of investigation records, right protection of an individual, barring any special circumstance. However, the remaining part of the protocol of interrogation of witness's personal information may not be disclosed or likely to infringe on the individual's private right.

Furthermore, the aforementioned information is mixed with the information pertaining to an individual, which falls under the grounds for non-disclosure and the non-disclosure part, but it is possible to separate and disclose the remainder, except for the part falling under the grounds for non-disclosure, and the remaining part of the information is worth disclosure.

Therefore, the remainder after deducting personal information (except the name of the persons concerned) from non-disclosure information is subject to disclosure pursuant to Article 9(1) of the Information Disclosure Act, and the disclosure of the aforementioned information pursuant to Article 9(1) of the same Act cannot be deemed as infringing on the privacy and freedom of privacy under the Constitution.

(d) Public opinion:

The plaintiff asserts that the defendant decided to disclose the invoice of the case in the first record that it was not made public but actually made public a copy or public notice of the investigation results report (in fact), which is the part corresponding thereto. However, in addition, the investigation results report (in the first record) among the records asserted by the plaintiff that it was not made public despite the above disclosure decision, in terms of information title, content, etc., it cannot be viewed as information separate from the invoice of the case among the information requested for disclosure, which is a separate information from the original information requested for disclosure.

3. Conclusion

Therefore, the plaintiff's claim is accepted.

[Attachment Form 5]

Judges Kim Hong-do (Presiding Judge)