(영문) 서울고등법원 2015.8.19. 선고 2015누38841 판결

A. On August 16, 2013, the Plaintiff filed a request with the Defendant for the disclosure of information on the part other than personal information among the suspect interrogation records in the Seoul Central District Prosecutors’ Office No. 2011 type No. 10454 (hereinafter “instant information”).

B. On August 30, 2013, the Defendant rendered a disposition rejecting the disclosure of information (hereinafter “instant disposition”) on the ground that the instant information constitutes information subject to non-disclosure under Article 9(1)6 of the Official Information Disclosure Act (hereinafter “Information Disclosure Act”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 and 2, the purport of the whole pleadings

2. Determination on the defense prior to the merits

A. The defendant's assertion

From 207 to January 21, 2014, a lawsuit seeking revocation of a disposition rejecting the disclosure of information filed by the Plaintiff throughout the country constitutes 11.8% of the lawsuit claiming the disclosure of information received throughout the same period, and the Plaintiff did not receive the information ordered to be disclosed after winning the lawsuit, and the Plaintiff’s purpose of filing the lawsuit appears to be in recovery of litigation costs, and the Plaintiff’s administrative power was wasted by the employees of the prison and avoided labor. In full view of the above, the Plaintiff’s lawsuit in this case constitutes abuse of the right of lawsuit, and thus, is unlawful.

B. Determination

A citizen’s right to know, in particular, the right to access to national information is recognized in relation to the freedom of expression, which is a fundamental right under the Constitution of Korea, and the content of that right includes the so-called general right to request information disclosure that anyone of the general public holds and manages with respect to the State (see Supreme Court Decision 97Nu5114, Sept. 21, 199). The law in which the general right to request information disclosure recognized under the Constitution is embodied is the Information Disclosure Act. Furthermore, since the right to request information disclosure based on the Information Disclosure Act is a specific right protected under the law, the claimant’s right to request information disclosure to a public institution and received a rejection disposition is the infringement of legal interests (see Supreme Court Decision 2003Du8050, Dec. 12,

In other words, rather than filing a lawsuit as to the same rejection disposition as to the same claim for information disclosure, the filing of a lawsuit seeking the revocation thereof by a number of requests for information disclosure and by each public agency constitutes infringement of individual legal interests. Therefore, the filing of the lawsuit in this case cannot be deemed as abuse of right solely on the ground that the Plaintiff filed a lawsuit seeking information disclosure from 2007 to January 2014, and filed a lawsuit seeking the revocation thereof by multiple public agencies and filed a lawsuit seeking the revocation of rejection disposition, and the same period is 11% of the total number of lawsuits claiming information disclosure during the same period (only a certain claim for information disclosure can be restricted individually to abuse of right).

Therefore, the defendant's above assertion is without merit.

3. Whether the instant disposition is lawful

A. The parties' assertion

The plaintiff asserts that the information of this case is unlawful because it is necessary to remedy the plaintiff's rights, and the defendant's claim constitutes abuse of rights, and the information of this case constitutes information that is likely to prevent B from enjoying a free privacy if disclosed as a matter of personal information.

B. Relevant statutes

Attached Form 3 is as listed in the "relevant Acts and subordinate statutes".

C. Determination

1) In principle, a citizen’s claim for information disclosure should be widely permitted unless it falls under the information subject to non-disclosure under Article 9 of the Information Disclosure Act. However, in fact, in a case where it is evident that a public institution’s claim for information disclosure constitutes abuse of rights, such as where it is intended to obtain unjust benefits which cannot be accepted by social norms by using the information disclosure system without any intent to acquire or utilize the pertinent information, or where it is evident that the case constitutes abuse of rights, such as where

2) The following facts are recognized in full view of the respective descriptions of Gap evidence Nos. 3 through 5, Eul evidence Nos. 1 through 7, and the purport of the entire pleadings.

A) The Plaintiff was sentenced to imprisonment with prison labor for not less than three years and six months, and repeated various claims against various government agencies for disclosure of information during one hundred and fifty times, and the Plaintiff filed a lawsuit seeking revocation of information disclosure with each court nationwide (hereinafter referred to as “litigation seeking revocation of information disclosure”).

B) The administrative agency decided to disclose or partially disclose the Plaintiff’s request for disclosure of information in multiple cases, but the Plaintiff did not receive the relevant information.

C) The Plaintiff, including the instant case, appointed a specific attorney as an attorney in a lawsuit claiming the disclosure of information. It is also reasonable that the Plaintiff did not perform active pleadings, such as submission of a preparatory document or documentary evidence. The Plaintiff’s attorney, even in the first instance court and the first instance court prior to remand, submitted a written reply to the Defendant’s grounds of appeal, and was present at the Plaintiff’s attorney twice at the date of trial prior to remand, and was present at the first instance court, twice at the date of trial prior to remand, and all the acts, such as preparing a written complaint or submitting other preparatory documents and documentary evidence except for the above written answer,

D) Upon the completion of a lawsuit claiming information disclosure, the Plaintiff recovered the litigation cost by filing an application for confirmation of the amount of the litigation cost including the attorney’s fees, but a considerable number of cases were found in which the Plaintiff did not actually pay for false costs.

E) At least 90 times of the Plaintiff’s appearance in the hearing of a lawsuit claiming the disclosure of information, the Plaintiff appeared in the court nationwide, and accordingly, did not pay the cost of attendance in the court.

3) According to the above facts, it is reasonable to view that the plaintiff claimed the disclosure of information for the purpose of taking monetary benefits after winning the lawsuit seeking the revocation of the rejection disposition if the claim is rejected, and then receiving the amount equivalent to the expenses actually paid in the lawsuit, through the final procedure for litigation costs, rather than claiming the disclosure of information for the purpose of approaching the information of this case. Thus, such claim for disclosure of information shall not be allowed as an abuse of the right.

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and since the judgment of the court of first instance is unfair with different conclusions, the defendant's appeal is accepted, and the judgment of the court of first instance is revoked and the plaintiff's claim is dismissed as per Disposition