[1] The scope of the quoted document as stipulated in Article 344(1)1 of the Civil Procedure Act, and its scope, whether a “documents kept or held by a public official in relation to his/her duties” as stipulated in Article 344(2) of the same Act bears the duty to submit documents (affirmative in principle)

[2] Where the quoted document under Article 344(1)1 of the Civil Procedure Act is a document kept or held by a public official in relation to his/her duties and constitutes information subject to non-disclosure under Article 9 of the Official Information Disclosure Act, whether the public official bears the duty to submit the document (affirmative in principle)

[3] Whether the court may decide whether to accept an application for an order to submit documents after determining whether the document subject to the order is necessary by documentary evidence (affirmative)

[1] Article 344 of the Civil Procedure Act provides for “Duty to submit documents”. Paragraph (1) 1 of the same Article provides that, when a party holds a document quoted in a lawsuit (hereinafter “personal document”), the person holding the document shall not refuse to submit it. Paragraph (2) of the same Article provides that “documents kept or held by a public official or ex-public official in connection with his/her duties shall be excluded from the subject to the duty to submit documents, on the ground that the duty to submit the document is recognized even in cases falling under paragraph (1).”

A quoted document under Article 344(1)1 of the Civil Procedure Act includes not only the case in which the parties have accepted the document itself as evidence in a lawsuit, but also the document that refers to the existence of the document and its contents actively in order to clarify their own intent, and is based on the basis or supporting material for themselves. In addition, if the quoted document falls under the quoted document under Article 344(2) of the same Act, it cannot be exempt from the duty to submit the document unless there are special circumstances.

[2] In light of the language, content, structure, and legislative purpose, etc. of Article 344(1)1 of the Civil Procedure Act, even if the quoted document is a document kept or held by a public official in relation to his/her duties and constitutes information subject to non-disclosure under Article 9 of the Official Information Disclosure Act, barring any special circumstance, the submission of the document cannot be exempted.

[3] The filing of an application to order the holder of the document to submit it is one of the methods of filing an application for a documentary evidence (Article 343 of the Civil Procedure Act). The court may determine whether the document subject to an order to submit is necessary for documentary evidence and determine whether to accept the application in accordance with the main sentence of Article 290 of the Civil Procedure Act.

[1] Article 344 of the Civil Procedure Act / [2] Article 344(1)1 of the Civil Procedure Act, Article 9 of the Official Information Disclosure Act / [3] Articles 290 and 343 of the Civil Procedure Act

[1] Supreme Court Order 2006Ma1659 Decided June 12, 2008 / [2] Supreme Court Order 2010Ma1659 Decided July 6, 201 / [3] Supreme Court Order 2006Ma1301 Decided March 14, 2008

Applicant

The Minister of Justice

Seoul High Court Order 2014Ra1288 dated January 21, 2015

All reappeals are dismissed.

The grounds of reappeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Whether the document of this case, etc. is obliged to submit a document under Article 344 of the Civil Procedure Act (the grounds of reappeal No. 1 and 2 of the applicant and No. 1 of the respondent's grounds of reappeal)

Article 344 of the Civil Procedure Act provides for “Duty to submit documents.” Paragraph (1) 1 of the same Article provides that when a party holds a document quoted in a lawsuit (hereinafter referred to as “personal document”), the person holding the document shall not refuse to submit it. Paragraph (2) of the same Article excludes “documents kept or held by a public official or a former public official in connection with his/her duties” from those subject to the duty to submit documents, setting forth the grounds for the duty to submit the document, with regard to “documents kept or held by him/her in connection with his/her duties.”

A quoted document under Article 344(1)1 of the Civil Procedure Act includes not only the case in which the parties have cited the document itself as evidence in a lawsuit, but also the document that refers to the existence of the document and its contents actively in order to clarify their own intent as evidence in the lawsuit. In addition, if the quoted document falls under the quoted document under Article 344(2) of the same Act, even the “documents kept or held by a public official in relation to his/her duties” as provided by Article 344(2) of the same Act cannot be exempt from the duty to submit the document unless there are special circumstances (see Supreme Court Order 2006Ma82, Jun. 12, 2008

The lower court determined that only the quoted document under Article 344(1)1 of the Civil Procedure Act, which falls under the part of the minutes of the third bar examination among the minutes of April 26, 2013, and the part on which the criteria for determining successful applicants of the third bar examination among the minutes of the minutes of April 8, 2014 and the part on which the elements considered in this case are known (hereinafter “the document of this case”) constituted the quoted document under Article 344(1)1 of the Civil Procedure Act, and the other parts are public documents owned and managed by the respondent in the course of performing his/her duties, and thus, it is not recognized that the submission obligation should be made even under Article 344(2) of the Civil Procedure Act. On this premise, the lower court modified the first instance court’s decision contrary to this Opinion,

The judgment of the court below is in accordance with the above legal principles and did not err in violation of the Constitution, Acts, orders, and regulations that affected the trial.

2. Whether information subject to non-disclosure under the Official Information Disclosure Act should be submitted (the second ground for re-appeal of the respondent)

In light of the language, content, structure, and legislative purpose, etc. of Article 344(1)1 of the Civil Procedure Act, even if the quoted document is a document kept or held by a public official in connection with his/her duties and constitutes information subject to non-disclosure under Article 9 of the Official Information Disclosure Act, barring any special circumstance, the submission of the document cannot be exempted (see Supreme Court Order 2010Ma1659, Jul. 6, 201).

The court below ordered the submission of the document of this case on the premise that the document of this case is a quoted document, but it does not fall under the part which can be recognized as significantly impeding the fair performance of duties related to the bar examination of the respondent.

In light of the above legal principles, it is difficult to view that there are special circumstances to refuse to submit the document of this case corresponding to the cited document only with the data submitted by the respondent. In determining to the same purport, the lower court did not err by violating the Constitution, statutes, orders, and rules that

3. Scope of recognition of order to submit documents (No. 3 of the applicant's grounds of reappeal and No. 3 of the respondent's grounds of reappeal

The filing of an application for ordering a person holding a document to submit it is one of the methods of filing an application for a documentary evidence (Article 343 of the Civil Procedure Act). The court may determine whether a document subject to an application for submission is necessary for documentary evidence and determine whether to accept the application in accordance with the main sentence of Article 290 of the Civil Procedure Act (see Supreme Court Order 2006Ma1301, Mar. 14, 2008).

In light of the above legal principles, the court below's dismissal of the remainder by requiring the submission of the document of this case, which is part of the minutes stated in the purport of the application, is justified. The court below did not err in the violation of the Constitution, Acts, orders, or rules that affected the judgment.

4. Conclusion

The re-appeal by the claimant and the respondent is all dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)