2013Du17503 Revocation of Disposition Rejecting Information Disclosure

The shares of Korea Exchange Bank Co., Ltd.

Financial Supervisory Service

Seoul High Court Decision 2012Nu31337 Decided July 26, 2013

December 26, 2013

The appeal is dismissed.

The costs of appeal are assessed against the Defendant.

The grounds of appeal are examined.

1. We examine whether information constitutes information subject to non-disclosure under Article 9(1)4 of the Official Information Disclosure Act (hereinafter “Information Disclosure Act”).

A. The Information Disclosure Act provides for "information related to a trial in progress" under Article 9(1)4 as "information subject to non-disclosure in order to prevent damage to the national judicial action, such as the independence and fairness of trial, by providing for matters necessary for the citizen's request for disclosure of information held and managed by a public institution and for the public institution's duty to disclose information, thereby guaranteeing the citizen's right to know and ensuring the transparency of government participation and state administration. In light of the legislative purpose of the Information Disclosure Act, the principle of disclosure of information, and the form and purport of the above provision of information subject to non-disclosure, etc., in order to refuse the disclosure of information on the grounds that the information constitutes "information related to a trial in progress in progress by a public institution other than the court" under the above provision, it does not necessarily have to be included in the records of trial in progress, but it is reasonable to view that all the information related to the trial is not corresponding to the information, but limited to the information that is likely to specifically affect the results of the trial or the trial in progress (see Supreme Court Decision 2009Du1921, Nov. 24, 201).

The lower court determined to the effect that: (a) the data on the basis of determining whether Lone Star Holdings constitutes a non-financial business operator with respect to the announcement of the review results of eligibility for Lone Star Holdings on March 16, 201, as indicated in [Attachment 2] List at the time of the original adjudication, including the documents submitted by Lone Star Holdings upon receipt of a request from the Defendant by the Defendant and the relevant documents investigated by the Defendant; and (b) the documents submitted by Lone Star Holdings as of June 2010, and the information listed in Annex 2 List B B at the time of the original adjudication, including the review report prepared by the Defendant (hereinafter collectively referred to as “the information of this case”); and (c) the information, as indicated in the Disposition List 2011Guhap40189, the Seoul Administrative Court, the Constitutional Court, 201Hun-Ma564, etc., which was in progress at the time of the instant disposition, need not be subject to non-financial information under Article 9(1)4 of the Information Disclosure Act, based on the following circumstances in its reasoning.

The judgment of the court below is just in accordance with the above legal principles, and there is no violation of the meaning of information subject to non-disclosure under the above provision or the legal principles on the inclusion thereof, or failing to exhaust all necessary deliberations.

B. In an appeal seeking the revocation of an administrative disposition, the agency may add or modify other reasons only to the extent that it is recognized as identical to the original reason and basic factual relations. The existence of such basic factual relations is determined based on whether the grounds for disposition are identical in the basic social facts in light of the specific facts prior to the legal evaluation. Thus, it cannot be deemed that the initial grounds for disposition are identical on the ground that the additional or modified grounds existed at the time of the disposition or the parties knew of such facts (see, e.g., Supreme Court Decisions 91Nu3895, Feb. 14, 1992; 2009Du19021, Nov. 24, 201).

The lower court, insofar as the Defendant stated in the initial grounds for disposition of this case that the information of this case was an information related to a pending lawsuit in the court, among the International Investment Dispute Settlement Center (ICSID), which is an international arbitration institution (ICSID), which is a procedure entirely separate from the pending lawsuit in the court in this case.

The reason for the disposition of this case also constitutes information related to the re-procedures, and the reason for the disposition of this case is not permissible because it is added to the reason for the original disposition and the basic facts cannot be identical.

The judgment of the court below is just in accordance with the above legal principles, and there is no error in the misapprehension of legal principles as to the permission of additional disposition grounds.

2. We examine whether the information constitutes information subject to non-disclosure under Article 9(1)5 of the Information Disclosure Act.

In light of the purpose of the information disclosure system under Article 1 of the Information Disclosure Act and the legislative intent of the information subject to non-disclosure under Article 9 (1) 5 of the Information Disclosure Act, “information that has considerable grounds to recognize that the fair performance of duties would substantially interfere with the fair performance of duties” refers to the case where there is a high probability that the fair performance of duties would substantially interfere with the fair performance of duties if disclosed. Whether the information constitutes such a case shall be determined carefully depending on specific matters by comparing and comparing the interests such as the fairness of duties protected by non-disclosure and the interests of guaranteeing citizens’ right to know, guaranteeing citizens’ right to know, securing citizens’ participation in state affairs, and securing transparency in state affairs (see, e.g., Supreme Court Decisions 202Du12946, Aug. 22, 2003; 2009Du19021, Nov. 24, 2011).

The lower court determined to the effect that the instant information contains details related to the examination of regular eligibility or non-financial business operators already completed, and thus, even if the instant information is disclosed, it cannot be deemed as impeding the Defendant’s review affairs in the future, and rather, the disclosure of the instant information would contribute to realizing the citizen’s right to know and ensuring the fairness and transparency of the Defendant’s duties. Therefore, the instant information cannot be deemed as information subject to non-disclosure under Article 9(1)5 of the Information Disclosure Act.

The judgment of the court below is just in accordance with the above legal principles, and there is no violation of the meaning of information subject to non-disclosure under the above provision or the legal principles on the inclusion thereof, or failing to exhaust all necessary deliberations.

3. We examine whether the information constitutes information subject to non-disclosure under Article 9(1)7 of the Information Disclosure Act.

The term "management and business secrets of a corporation, etc." under Article 9 (1) 7 of the Information Disclosure Act refers to "all information on business activities which are advantageous to the other party not being known to the other party" or "all confidential information on business activities", and the decision of disclosure shall be determined depending on whether there is a legitimate interest to refuse disclosure. Whether there is a legitimate interest in such disclosure shall be determined strictly in light of the legislative intent of the Information Disclosure Act (see, e.g., Supreme Court Decisions 2007Du1798, Oct. 23, 2008; 2009Da19021, Nov. 24, 201).

The lower court determined that the instant information did not constitute information subject to non-disclosure under Article 9(1)7 of the Information Disclosure Act in light of the following circumstances, including the fact that the instant information related to Lone Star Holdings’s fulfillment of the requirements for acquiring stocks held in excess of the limit is not likely to seriously undermine the legitimate interests of Lone Star Holdings.

The judgment of the court below is just in accordance with the above legal principles, and there is no violation of the meaning of information subject to non-disclosure under the above provision or the legal principles on the inclusion thereof, or failing to exhaust all necessary deliberations.

4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok

Justices Shin Young-chul (Presiding Justice)

Justices Lee Sang-hoon

Justices Kim Gin-young