[1] Whether the materials containing the real names of teachers and teachers who join a trade union, and the organizations which they join are related closely to the privacy and freedom of the pertinent teachers, the individual right to organize, and the collective right to organize of the trade union to which the teachers join (affirmative)

[2] The citizen's right to know, the student's right to learn, the student's right to education, the real name of the teacher's organization and the teacher's right to education, and whether the teacher's right to education has superior value to the right to privacy of the teacher's member's right to privacy

[3] In a case where a member of the National Assembly requested the Minister of Education, Science and Technology to disclose the real names of the teachers' organization and teachers who joined a trade union and the organizations of which a member of the National Assembly joined, to the public via the Internet, etc., the case affirming the application for provisional disposition on the ground that the whole of the above materials are highly likely to unfairly infringe on the rights of the relevant teachers and the trade union such as privacy, freedom of private life, right to organize, etc., and that it violates the duty to use personal information according to the purpose of provision

[1] The real names of teachers and teachers who join the National Assembly Education Science and Technology Committee and submit to the members of the National Assembly by the Minister of Education, Science and Technology after collecting elementary and secondary education from the head of a school, etc. and submitting them to the members of the National Assembly Education Science and Technology Committee. This is recognized as information which is closely related to the organization's existence, maintenance, development, and expansion of the right to privacy of the teachers in question and the right to participate in the trade union (individual right to organize) and the right to participate in the trade union.

[2] Even when considering that teachers of schools providing elementary and secondary education have public positions, information on whether they have joined a trade union is a sensitive information that needs to be protected at a higher level than general personal information. In light of the fact that it is difficult to deem that information on whether teachers have joined a trade union or what is a member organization is a member organization of a trade union to be a material to determine the job ability or suitability of the teacher in question, it shall not be deemed that the right to know of citizens, the right to learning of students and the right to education of parents have superior value to the right to privacy, freedom of learning and the right to organize, etc. of the teacher in question, which may be infringed due to disclosure of information including the real name and the right to education of teachers who have joined the trade union and the right to education of the teacher in question. (The purpose of the Act on Special Cases Concerning Information Disclosure by Education-Related Institutions requires the head of a school providing elementary and secondary education to disclose only the real name of teachers who have joined the trade union, not the real name of

[3] In a case where a member of the National Assembly of the National Assembly, the head of a school providing elementary and secondary education, and the head of a school providing education-related institutions, requests the Minister of Education, Science and Technology for the purpose of ascertaining whether the number of teachers' organizations and teachers who joined a trade union has been accurately published as prescribed by the Act on Special Cases Concerning the Disclosure of Personal Information by Education-Related Institutions, and the Enforcement Decree thereof, and the Minister of Education, Science and Technology requested the disclosure of the personal information to the general public through the Internet, etc., the case affirming the application for provisional disposition on the ground that the person who received the personal information under Article 10 of the Act on Special Cases Concerning the Disclosure of Personal Information by Education-Related Institutions or Article 8 of the Act on Special Cases Concerning the Disclosure of Personal Information by Education-Related Institutions violates the duty to use the personal information in accordance with the purpose provided.

[1] Articles 17 and 3 of the Constitution of the Republic of Korea; Articles 3, 5(1)15 and (3), and 8(2) of the Act on Special Cases concerning the Disclosure of Information by Education-Related Institutions; Article 3(1) [Attachment 1] 15(h) of the Enforcement Decree of the Act on Special Cases concerning the Disclosure of Information by Education-Related Institutions / [2] Articles 17, 21(1), 31, and 33 of the Constitution of the Republic of Korea; Articles 3, 5(1)15 and (3), and 8(2) of the Enforcement Decree of the Act on Special Cases concerning the Disclosure of Information by Education-Related Institutions; Article 3(1) [Attachment 1] 15(h) of the Enforcement Decree of the Act on Special Cases concerning the Disclosure of Information by Education-Related Institutions / [3] Article 300(1) of the Civil Execution Act; Articles 17, 21(1) and 31(1) of the Constitution; Article 30(1) of the Act on Special Cases concerning the Disclosure-Related Institutions

National Teachers' Union and Labor Union et al. (Attorneys Lee Dong-soo et al., Counsel for the defendant-appellant)

Respondent (Seoul International Law Firm, Attorney Lee Jae-hoon, Counsel for defendant-appellant)

1. The respondent shall not publish the "real name data on the current status of teachers' organizations and teachers' unions of various levels" submitted by the Minister of Education, Science and Technology or disclose such data to the press, etc.;

2. The applicant's remaining claims are dismissed.

3. Litigation costs shall be borne by the respondent.

Disposition 1 and Indirect Compulsory Payment (300 million won per violation case)

1. Basic facts

In full view of the purport of the records and the whole examination, the following facts are vindicated:

A. The applicant Korean Teachers' Union (hereinafter referred to as the "applicant Workers' Union") is a unit trade union organized and established for nationwide teachers, and the remaining applicants are the members who joined the applicant's union as the teachers of elementary and secondary schools, and the respondent is a member of the Educational Science and Technology Committee.

B. The Act on Special Cases Concerning the Disclosure of Information by Educational Institutions (hereinafter “Information Disclosure Act”) requires the head of a school that provides elementary and secondary education (hereinafter “head of a school”) to publish “the current status of teachers’ organizations and trade unions (number of persons)” at least once a year. [Article 5(1)15, Article 5(3) of the same Act, Article 3(1) [Attachment 1] and 3(1) [Attachment 1] 15(h) of the Enforcement Decree of the same Act], the respondent requested the Minister of Education, Science and Technology on January 28, 2010 to submit data on the current status of teachers’ organization and trade union membership (including actual names) of teachers and staff of each school.”

C. Accordingly, the Minister of Education, Science and Technology collected data including the real name, department in charge, membership organization, etc. of teachers who have joined each school and trade union (hereinafter “instant information”) from the principal of the school, etc. and submitted it to the respondent around March 26, 2010.

D. Meanwhile, the respondent declares that he will disclose the instant information to the general public via the Internet, etc. through the process of legal review and gathering public opinion.

2. The parties' assertion

The applicants claim that disclosure of the instant information is prohibited because it infringes on the privacy, freedom, right to organize, and the right to organize the applicant union, which are fundamental rights of the relevant teachers, and the respondent asserts that disclosure of the instant information should be allowed in terms of the right to know, the right to learn students, or the right to educate parents, and that the applicants do not have the right to prohibit disclosure of the instant information.

3. Determination

A. Determination on the right to be preserved

(1) The instant information includes the real name of a teacher who has joined a teachers’ organization and a teachers’ organization that has joined a trade union as above, which is recognized as information closely related to the privacy and freedom of the teacher in question as well as the freedom to act as a trade union (individual right to organize) and the right to continue, maintain, develop, and expand a trade union (collective right to organize) from the perspective of the applicant’s union (the respondent asserts that the instant information is not information about private life, but the subscription and withdrawal from the trade union are entirely left to the free will of the teacher in question, and therefore, the teacher is basically in a “non-business area” of the teacher in question and is recognized as personal information (However, the public position of the teacher in question should be protected to a certain extent).

(2) Therefore, if the instant information is disclosed, it would result in restrictions on the applicants’ rights and freedom, and therefore, we examine whether the limitation on the applicants’ rights due to the disclosure of the instant information would be permitted in any case.

(A) First, examining the relevant laws, Article 3 of the Information Disclosure Act of the Educational Institution (this Act is the Act enacted to guarantee the right to know by prescribing the basic matters necessary for the disclosure and disclosure of information held and managed by the education-related institutions) provides that “No personal information of teachers shall be included in the information disclosed or provided by the education-related institutions (such as above, the Enforcement Decree of the Act provides that only the number of teachers and staff members who have joined the teachers’ organization and the labor union shall be published through the said Enforcement Decree). In addition, the Trade Union and Labor Relations Adjustment Act require that only the number of union members be included in the report on the establishment of the labor union (Article 10(1)3), and there are no other explicit legal grounds for the report

(B) Next, in light of the fact that the respondent's right to know, the student's right to learn and the right to education of parents, the health class in relation to the student's right to learn, and the information on whether the applicant has joined a trade union is a sensitive information that needs to be protected at a higher level than general personal information, and that information on whether the teacher has joined a trade union or what is a member's organization is difficult to be considered as a material to determine the ability or suitability of the teacher in question as a teacher in relation to the teacher in question, it cannot be deemed that the respondent has superior value to the applicant's right to know that the above right claimed by the respondent has been infringed due to the disclosure of the information in this case (the Information Disclosure Act of the Educational Institution provides the principal with only the number of the applicants, not the real name of the teacher in the teachers' organization or the trade union, is the result of the legislative balancing of the right restricted by the citizen's right to know and disclosure).

(C) In addition, in light of the legislative purport of each of the above (a) and the above nature of the instant information, reasonable standards should be established for the scope of the right to request disclosure (general citizens, students, parents, etc.), the scope of the right to information to be disclosed, the scope of the information to be disclosed, the method of disclosure, etc., based on individual factors, such as the specific right to request access to the instant information (right to know as a general citizen, the right to study as a student, and the right to education as a parents), and the intent of the person claiming such right. Without determining such reasonable standards, it is highly probable that disclosure of all of the instant information to anyone or all of the teachers who are not directly related to the right to education or education of individual students or parents, and disclosure of all of the information on their real names is highly likely to unfairly infringe on each of the above rights of teachers, teachers

(3) Furthermore, according to the purport of Article 10 of the Act on the Protection of Personal Information of Public Institutions and Article 8 of the Act on the Protection of Information of Educational Institutions, a person who received personal information is obligated to use the personal information for the purpose of providing it. As seen earlier, the respondent received the instant information for the purpose of ascertaining whether the principal of the school has accurately published the number of teachers who joined the teachers’ organization and the trade union. It is apparent that such respondent’s disclosure of all of the instant information beyond the original purpose would result in non-compliance with the above obligation.

(4) Therefore, the respondent is not allowed to publish the instant information on the Internet, etc. or to disclose it to the press, etc., and if such disclosure is expected to bring about considerable infringement of various rights above, the respondent has the right to seek the prohibition of disclosure.

B. Determination of the respondent's assertion

The respondent argues that the application for provisional disposition of this case is restricted in the performance of duties of the member of the National Assembly, and that the legislative authority is infringed, but even a member of the National Assembly has no authority to perform his duties beyond the limit permitted by the law, so the above assertion is without merit itself.

The respondent argues that the disclosure of the information of this case may constitute a member's exemption privilege, and thus the decision of the court may be invalidated. However, the application of this case is aimed at preventing the respondent from disclosing the information of this case to the Internet or the press, and it is clear that the application does not aim at "the speech and voting in the National Assembly" as stipulated in Article 45 (a) of the Constitution, and therefore, the above assertion is without merit.

C. Determination on the necessity of preservation

According to all the circumstances shown in the record, if the respondent discloses or discloses the information of this case as above, it is proved that the respondent will incur irrecoverable damage, and therefore the necessity of preservation is also recognized.

D. Determination as to the application for indirect compulsory performance

Although applicants are also seeking an indirect compulsory performance decision, they do not accept the above application because there is no proof in the record on the fact that the respondent does not perform the obligation to order the provisional disposition of this case.

4. Conclusion

Therefore, the application of this case is justified within the scope of the above recognition, and the remaining application is dismissed as it is without merit. It is so decided as per Disposition.

Judges Yang Jae-young (Presiding Judge)

주1) 유럽연합의「개인보호 및 당해 정보의 자유로운 이동에 관한 유럽의회 및 이사회 지침」(Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the Protection of individuals with regard to the processing of personal data on the free movement of such data), 영국의「개인정보보호법」(Data Protection Act 1998), 독일의「연방정보보호법」(Bundesdatenschutzgesetz), 프랑스「정보처리·축적 및 자유에 관한 법률」(Loi n°78-17 du 6 janvier 1978 relative a l'informatique, aux fichiers et aux libertes) 등은 모두 인종, 정치관, 종교적 신념, 건강, 성생활에 대한 정보 등과 더불어 노동조합의 가입 여부에 대한 정보를 민감한(또는 특수한) 정보로 보아 일반적인 개인정보보다 높은 수준으로 보호하고 있고, 이는 정부(행정안전부)가 제출한 것을 포함하여 국회에 제출되어 계류 중인 3가지의 개인정보보호법(안)에서도 마찬가지이다.