(영문) 대법원 2015.2.12. 선고 2014두36358 판결

1. The Constitution guarantees the freedom of expression as a fundamental right to all citizens. To freely form and express opinions on the premise of the freedom of expression, individuals must have access to information and be able to know it. Thus, the right to know should be recognized. The content of the right to know includes the right to access information held and managed by public institutions.

Article 3 of the Official Information Disclosure Act (hereinafter “Information Disclosure Act”) declares the principle of information disclosure that information held and managed by public institutions should be actively disclosed under the conditions as prescribed by this Act. Article 5(1) provides that all citizens shall have the right to request information disclosure. Article 6 of the same Act provides that public institutions shall enforce this Act, modify relevant Acts and subordinate statutes, and improve information management systems so that the people’s rights to request information disclosure can be respected. Considering the legislative purpose and content of the Information Disclosure Act, the citizens’ request for information disclosure should be widely permitted unless it falls under information subject to non-disclosure under Article 9 of the Information Disclosure Act, in principle.

On the other hand, since all rights shall be exercised in good faith and sincerity, such rights shall not be exercised if they are abused against the good faith principle. This also applies to requests for disclosure of information. Therefore, in a case where: (a) in fact, the right to request disclosure of information may not be readily concluded solely on the ground that the claimant’s purpose or reason for the request for disclosure of information is unclear, where it is evident that the relevant information constitutes abuse of the right, such as obtaining unjust benefits which cannot be accepted by social norms by using the information disclosure system without any intent to acquire or utilize the relevant information; or (b) filing a request for disclosure for the purpose of inducing public officials in charge of the public institution or repeating such claims; or (c) where the Information Disclosure Act does not limit the importance of the right to know and the purpose and reason for the request

2. Review of the reasoning of the lower judgment and the record reveals the following facts.

A. The plaintiff was sentenced to three years and six months of imprisonment for a violation of the Narcotics Control Act, and repeatedly filed a claim for various information disclosure with the chief prosecutor, branch chief, the Minister of Foreign Affairs and Trade, the Minister of Security and Public Administration, the head of a detention house, the chief of a police station, and the chief of a police station in several recent years, such as administrative litigation, civil litigation, judgment of the public prosecutor's office, notice of decision of disclosure of information that the public prosecutor's office decided to disclose during the recent several years, investigation records of consular or detention house employees who filed a complaint against the plaintiff's breach of his/her duties, work performance manuals of consular or detention house, and personnel measures against the pertinent consular or relevant employees.

B. In filing a claim for information disclosure as above, the Plaintiff filed a claim for cancellation of a claim with each court (hereinafter referred to as "claim for Information Disclosure") against the rejection disposition against the Plaintiff's request for information disclosure by multiple administrative agencies on several occasions without any reasonable ground. Although multiple administrative agencies decided to disclose or partially disclose the Plaintiff's information, the Plaintiff did not receive the pertinent information, and the Plaintiff filed a lawsuit for cancellation of a claim for information disclosure (hereinafter referred to as "claim for rejection disposition") against the rejection disposition if it is rejected.

C. The Plaintiff, including the instant case, appointed a specific attorney as a legal representative in a lawsuit claiming the disclosure of information. In consultation with the staff of the correctional institution, the Plaintiff made a statement to the effect that he/she would have been paid the attorney fees by winning the lawsuit claiming the disclosure of information and by winning the lawsuit seeking confirmation procedures, and that he/she would have distributed it with the attorney. In addition, the Plaintiff appeared in the court nationwide at least 90 times under the pretext of attending the pleading in the lawsuit claiming the disclosure of information, and did not pay the cost of attendance in the court.

D. The Plaintiff stated to the effect that, in consultation with the employees of prison, an information disclosure claim, which was proceeding with the Plaintiff, was not for remedy of rights, and was not for remedy of rights, and that, inasmuch as the Plaintiff’s time and the administrative power of the State was vain, it would be suspended.

3. According to these facts, the Plaintiff did not request the Defendant to disclose the information for access to the information of this case, but may be deemed to have filed a lawsuit seeking revocation of the rejection disposition if the claim is rejected and won in the lawsuit, and there is considerable room to view that the Plaintiff filed a claim to disclose the information for the purpose of obtaining a larger amount of the cost of litigation than the cost of litigation actually paid in the lawsuit, or evading forced labor by attending the court on the date of pleading during the number of days of pleading. In accordance with the above legal principles, such a claim to disclose the information may not be deemed as an abuse of the right.

Nevertheless, notwithstanding the above circumstances, the court below held that the disposition of this case by the defendant who rejected the plaintiff's request for disclosure of information of this case was unlawful for the reasons stated in its holding without examining whether there is a special reason for the plaintiff to request disclosure of information in this case. In so doing, the court below erred by misapprehending the legal principles on abuse of rights in the request for disclosure of information and failing to exhaust all necessary deliberations

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.