Plaintiff

Prosecutor of Daejeon District Prosecutors' Office

July 25, 2013

Daejeon District Court Decision 2012Guhap1633 Decided January 16, 2013

1.The judgment of the first instance shall be modified as follows:

A. On September 30, 201, the Defendant’s rejection disposition against the Plaintiff on the disclosure of information, excluding the part pertaining to the information in the column for information subject to non-disclosure listed in attached Table 1, shall be revoked.

B. The plaintiff's remaining claims are dismissed.

2. 1/10 out of the total costs of litigation shall be borne by the Plaintiff, and 9/10 by the Defendant, respectively.

The judgment of the first instance shall be revoked. The defendant's refusal to disclose information against the plaintiff on September 30, 201 shall be revoked.

1. Details of the disposition;

(a) Confirmation of related criminal cases;

On January 10, 2007, the Plaintiff was sentenced to a conviction of nine years of imprisonment with prison labor for the crime of heavy confinement, etc. at the Daejeon District Court, and a judgment of not guilty for the crime of murder among the facts charged [the Daejeon District Court 2006Dahap234, 2006Gahap239 (Joint)].

On November 23, 2007, the Plaintiff and the Prosecutor appealed from the above judgment of the first instance, and the Daejeon High Court reversed the judgment of the first instance and sentenced the Plaintiff to imprisonment for life (the Daejeon High Court 2007No53).

On March 13, 2008, the Supreme Court reversed the judgment of the court below and remanded the case to the Daejeon High Court (Supreme Court Decision 2007Do10754) on the ground that it was unlawful to find the Defendant guilty of murder among the facts charged on March 13, 208.

On July 17, 2008, the Daejeon High Court sentenced the appeal of both the plaintiff and the prosecutor on July 17, 2008 (Seoul High Court 2008No1466). Since then, the Supreme Court sentenced the plaintiff on October 9, 2008 and the prosecutor's appeal was all dismissed (Supreme Court 2008Do6891). The above judgment of the first instance court sentenced the plaintiff to nine years of imprisonment (hereinafter "relevant criminal case").

B. Plaintiff’s request for disclosure of information on the records of trial in the relevant criminal case

On September 19, 2011, pursuant to Article 10(1) of the Official Information Disclosure Act (hereinafter “Information Disclosure Act”), the Plaintiff filed a claim with the Defendant to request the disclosure of the information stated in the [Attachment 1] Information Disclosure Request column (hereinafter “Information Disclosure Request”).

C. The defendant's non-disclosure decision

On September 30, 2011, the Defendant notified the Plaintiff of the non-disclosure decision that “a non-disclosure decision shall be made in accordance with the Criminal Procedure Act and the Information Disclosure Act” (hereinafter referred to as “instant disposition”) and attached Article 59-2(2) of the Criminal Procedure Act and Article 9(1) of the Information Disclosure Act.

[Ground of recognition] Facts without dispute, Gap 1 to 4 evidence, Eul 1 evidence (including paper numbers), the purport of the whole pleadings

2. Determination on the defense prior to the merits

A. Defendant’s defense prior to the merits

The Plaintiff requested the Defendant, who has the custody of evidentiary documents in the relevant criminal case, to disclose the information of the evidentiary documents, but the Defendant received a disposition of non-disclosure from the Defendant, and sought revocation of the disposition by the instant lawsuit. Accordingly, the Defendant’s objection to the prosecutor’s disposition regarding the application for perusal and copy of the final and conclusive trial records shall follow the quasi-appeal procedure as prescribed by the Criminal Procedure Act, and the instant disposition cannot be subject to appeal litigation under the Administrative Litigation Act, and thus, the instant lawsuit is unlawful.

B. Determination

In accordance with Article 10(1) of the Information Disclosure Act, the Plaintiff filed a claim for information disclosure of this case, and the Defendant made a decision on this case’s disposition as seen earlier. According to the above acknowledged facts, the instant disposition is subject to administrative litigation pursuant to Article 20(1) of the Information Disclosure Act by decision pursuant to Article 11(1) of the Information Disclosure Act (a) of the Information Disclosure Act (the Defendant may request an administrative appeal to the disposition agency or the ruling authority or file an administrative litigation with the court within 90 days from the date on which he/she becomes aware of the disposition in this case where he/she is dissatisfied with the decision made by the public agency related to the information disclosure). Accordingly, the Defendant’s prior defense on the merits is without merit.

3. Whether the disposition is lawful;

A. The parties' assertion

(1) Summary of the defendant's assertion

㈎ 이 사건 공개청구정보 중 증인신문조서, 녹취서, 진술조서 등을 공개할 경우 진술인의 성명, 생년월일, 주소 등이 기재되어 있거나 원고에게 불리한 진술이 기재되어 있어 보복범죄의 위험이 있다. 그리고 이 사건 공개청구정보 중 수사보고 및 수사보고에 편철된 사진 등은 수사기관의 내부문서일 뿐만 아니라 사건관계인의 개인정보가 기재되어 있다. 이처럼 이 사건 공개청구정보들은 정보공개법 제9조 제1항 제3호 , 제4호 , 제6호 에서 정한 비공개대상정보에 해당하므로, 이 사건 처분은 적법하다.

㈏ 이 사건 공개청구정보는 위 ㈎항과 같은 이유로 형사소송법 제59조의2 제2항 제3호 에서 정한 ‘소송기록의 공개로 인하여 사건관계인의 명예나 사생활의 비밀 또는 생명·신체의 안전이나 생활의 평온을 현저히 해할 우려가 있는 경우‘에 해당하여 열람·등사가 제한되는 소송기록이다. 나아가 이 사건 처분은 형사소송법 제59조의2 제2항 에 의한 재판확정기록의 열람·등사 제한의 예외와 허용범위 등에 관하여 규정한 검찰보존사무규칙 제22조의3 , 사건기록 열람·등사에 관한 업무처리지침 제5조에 의하여 이루어진 것이다. 따라서 이 사건 처분은 적법하다.

(2) Summary of the Plaintiff’s assertion

The Plaintiff consistently denied a crime in the relevant criminal case, but was convicted of a witness’s statement that is contrary to the Plaintiff’s assertion, such as the accomplice Nonparty 1. The Plaintiff filed the instant request for disclosure of information in order to secure related persons’ statement, etc. in the course of preparing a new trial, which constitutes “where a party involved in the lawsuit is deemed to have justifiable grounds for inspection or copying,” or “where deemed necessary for the protection of personal rights” as referred to in Article 9(1)6(c) of the Information Disclosure Act. In addition, the instant disposition taken by the Defendant does not constitute information subject to non-disclosure under each subparagraph of Article 9(1) of the Information Disclosure Act, and thus, the instant disposition is unlawful.

B. Relevant statutes

Attached Form 2 is as shown in the relevant statutes.

C. Determination

(1) Determination as to the assertion that the information constitutes information subject to non-disclosure under Article 9(1)3, 4, and 6 of the Information Disclosure Act

㈎ 인정사실

The gist of the crime that the Plaintiff was convicted in the relevant criminal case is that “the Plaintiff, jointly with Nonparty 1, arrested and detained Nonparty 3, who is the son and female living together with Nonparty 2 (the reason that the Plaintiff opposed to Nonparty 2’s living together with Nonparty 2, etc.) and assaulted Nonparty 2 before and after the instant case,” and the Plaintiff denied the case as a substitute for committing the crime, but the Plaintiff was convicted by the witness’s statement and witness’s testimony.

The information requested disclosure of this case was adopted as evidence in the relevant criminal case that was open to the public hearing and was investigated by all of the examination records, recording records and statement of statement, investigation reports (verification of the location of the base station of the telephone receiver), and photographs (the number of blades used in the criminal conduct) among the litigation records of the relevant criminal case that became final and conclusive against the plaintiff himself/herself (However, with respect to Nonparty 4, Nonparty 5, Nonparty 6, and Nonparty 7, the examination of witness was conducted in the presence of the defendant).

[Ground of recognition] Gap evidence 4-1, 2, and 3, and the court of this case read and examined the information of this case as non-disclosure, the purport of the whole pleadings

㈏ 정보공개법 제9조 제1항 제3호 의 비공개대상정보에 해당하는지 여부

Article 9(1)3 of the Information Disclosure Act provides that "information which, if disclosed, is likely to seriously undermine the protection of the lives, bodies, and property of the people" shall be subject to non-disclosure. The burden of proving "contributing to substantially obstruct the realization thereof" shall be the defendant, who is a public institution.

A defendant in a criminal trial may peruse or copy relevant documents or evidence during the proceeding (Article 35(1) of the Criminal Procedure Act), and the right to peruse or copy the records of trial of such defendant shall be the same even after the completion of the lawsuit, and it shall not be restricted solely on the grounds that the defendant's facts constituting an offense are serious.

On the other hand, although the plaintiff denied the criminal facts found guilty, there is no evidence to prove that the plaintiff committed, or was likely to commit, harm to the life, body or property of a witness, etc. who gave testimony unfavorable to himself/herself.

In addition, in a criminal trial, in the case of Nonparty 4, Nonparty 5, Nonparty 6, and Nonparty 7, the defendant testified in the presence of the plaintiff because it is deemed difficult to make sufficient statements in the case of Nonparty 4, Nonparty 5, Nonparty 6, and Nonparty 7, but even if the defendant testified in the leave of court, it is difficult to view that the defendant's testimony was a ground for refusing to allow the perusal and copying of the examination of witness, which is a part of the protocol of trial, to the plaintiff who was the defendant (Article 5 (1) and (3) of the Criminal Procedure Act provides that the protocol shall not be admitted

Furthermore, it cannot be said that the Plaintiff cannot peruse or copy the protocol of examination of witness or documentary evidence among the criminal records that the Plaintiff made a testimony unfavorable to himself/herself solely on suspicion of perjury, etc., or on the grounds of vague concerns that there is a risk of retaliationing crimes against himself/herself, cannot be said to conform to the purport of Articles 1, 3, and 6 of the Information Disclosure Act, which provides that in principle, all citizens may disclose information held and managed by the public in order to guarantee the right to know.

Therefore, it is difficult to readily conclude that the disclosure of the instant information on disclosure requests may seriously undermine the protection of the witness’s life, body, and property, and there is no other evidence to acknowledge it. Thus, the instant information on disclosure requests does not constitute information subject to non-disclosure under Article 9(1)3 of the Information Disclosure Act.

㈐ 정보공개법 제9조 제1항 제4호 의 비공개대상정보에 해당하는지 여부

Article 9(1)4 of the Information Disclosure Act provides as one of the information subject to non-disclosure, the disclosure of which would significantly impede the performance of duties if disclosed. The purport of Article 9(1)4 of the same Act is to prevent the disclosure of methods, procedures, etc. for investigation from causing significant difficulties to the performance of duties by an investigation agency. As such, written opinions, reporting documents, mail, legal review, internal investigation data, etc. in the investigation records may be deemed as constituting such act (see, e.g., Constitutional Court en banc Order 94Hun-Ma60, Nov. 27, 1997).

However, since information subject to disclosure request falls under reporting documents, etc., it does not immediately constitute information subject to non-disclosure under Article 9(1)4 of the Information Disclosure Act, and there is considerable reason to recognize that disclosure of investigation methods, procedures, etc. is considerably difficult to perform duties by examining the actual contents thereof (Supreme Court Decision 2010Du7048 Decided July 12, 2012).

Among the information on the disclosure of this case, the investigation report was adopted and investigated as evidence in the open court, such as the investigation report on whether it is possible to grasp the location of the base station of the telephone receiver, and the pictures of the same knife as the knife used for the crime, and it seems necessary to know the content of the investigation report for the relief

On the other hand, among the information of this case, the investigation report concerning the investigation related to the criminal investigation before the victim's disappearance includes the method of investigation. However, since the investigation report was already adopted in the open court and was investigated as evidence, it is difficult to view that the disclosure of the investigation report is open to the public.

The information pertaining to the instant request for disclosure does not constitute information subject to non-disclosure as provided by Article 9(1)4 of the Information Disclosure Act, since it is difficult to deem that there is considerable reason to recognize that the disclosure is considerably difficult to perform its duties by disclosing it, and there is no other evidence to acknowledge it.

㈑ 정보공개법 제9조 제1항 제6호 의 비공개대상정보에 해당하는지 여부

Article 9(1)6 of the Information Disclosure Act provides that one of the information subject to non-disclosure includes “personal information, such as name, resident registration number, etc. included in the relevant information, which, if disclosed, could infringe on an individual’s privacy or freedom of privacy.” Article 9(1)6 of the same Act provides that “information that is prepared or acquired by a public institution and that is deemed necessary to protect the public interest or an individual’s rights.” Here, whether disclosure constitutes “information that is deemed necessary to protect the individual’s rights” should be determined individually on a case-by-case basis by comparing and comparing the private information protected by the non-disclosure with the interests of an individual, such as privacy, and the interests of an individual protected by the disclosure, such as remedy for the individual’s rights, etc. protected by the disclosure. As a result of an administrative agency’s review on the illegality of a disposition rejecting the disclosure of information, if it is recognized that two parts can be separated within the scope that does not go against the purport of the request for disclosure, the aforementioned part that can be disclosed should be specified, and only the above disposition of the administrative agency’s shall be revoked (see Supreme Court Decision 201214Du127.

First, among the information on the instant request for disclosure, the information indicated in the column for information subject to non-disclosure among the attached details 1 (hereinafter “information of this case”) cannot be deemed as personal information, such as resident registration numbers, addresses, occupations, cellular phone numbers, which is deemed necessary for the relief of the Plaintiff’s rights, and thus constitutes information subject to non-disclosure under Article 9(1)6

On the other hand, the information of this case, other than the personal information of this case, has been investigated by being adopted as evidence in an open court, such as the content of statement made by the investigative agency of the relevant criminal case against the plaintiff, the content of legal testimony, the location of the base station, the investigation report on whether it is possible to grasp the location of the base station, and the knife photograph of the same knife as the knife used for the crime, which is recognized as necessary for the relief of the plaintiff's rights, and the benefits such as the relief of

Furthermore, since the instant personal information can be stated in a separate column or separated from other information in front of the instant information on disclosure request, it is reasonable to disclose only the remaining part of the information.

(2) Determination as to the relevant assertion on Article 59-2(2)3 of the Criminal Procedure Act, Article 22-3 of the Rules on the Affairs for the Preservation of Prosecutors' Offices, and Article 5 of the Work Process Guidelines on Perusal and Copy of Case Records

Article 59-2 of the Criminal Procedure Act provides that in order to guarantee the citizen's right to know and enhance the people's trust in judicial affairs, anyone may apply for perusal or copying of the records of trial to the public prosecutor's office keeping the records of trial for which judgment has become final and conclusive for the purpose of remedy of infringement of rights, academic research, or public interest (Article 59-2 of the Criminal Procedure Act). It is limited to exceptional cases, such as where the hearing is closed to the public, and the restriction should not be permitted where a person involved in the case or a third party

On the other hand, the provisions of each subparagraph of Article 59-2 (2) of the Criminal Procedure Act that prohibit the inspection or copying of the records of trial as in the case where the trial was conducted in a closed manner, which prohibit the public from disclosing the records of trial to damage the honor of the persons involved in the litigation, harm public order and good morals, or cause undue influence on the trial, and the defendant does not intend to limit the perusal of his/her own records of trial. Thus, the prohibition of disclosure under Article 59-2 (2) of the Criminal Procedure Act shall not be deemed to constitute "cases prescribed as confidential matters by other Acts or orders by other Acts" under Article 9 (1) 1 of the Information Disclosure Act.

Furthermore, although the rules on the affairs to preserve prosecutor's office were enacted by the Ordinance of the Ministry of Justice pursuant to Article 11 of the Prosecutor's Office Act, Article 22-3 of the Rules on the Affairs to Maintain Prosecutor's Records and Article 5 of the Rules on the Affairs to Maintain Prosecutor's Records, which provide for exceptions to the restriction on the perusal and copying of the final decision-making records and the permissible scope of perusal and copying of the final decision-making records, are merely administrative rules within administrative agencies without

As such, the restriction on reading and copying of case records pursuant to Article 22-3 of the Rules on Public Prosecution Preservation, which is merely an administrative rule, and Article 5 of the Business Guidelines on Perusal and copying of Case Records, shall not be deemed to fall under “where there is a special provision in other Acts concerning disclosure of information” under Article 4(1) of the Information Disclosure Act or “where there is a provision in secret or non-disclosure by an order (limited to the National Assembly rules, Supreme Court rules, Constitutional Court rules, rules, rules of National Election Commission, Presidential Decree, and municipal ordinances) delegated by other Acts or subordinate statutes” under Article 9(1)1 of the same Act (see Supreme Court Decision 2006Du3049, May 25, 2006,

Therefore, Article 59-2(2) of the Criminal Procedure Act concerning perusal and copy of the final judgment records, Article 22-3 of the Rules on the Affairs for the Preservation of Prosecutors' Offices, and Article 5 of the Work Guidelines concerning Perusal and Copy of the Case Records cannot be a legitimate ground for refusing the instant request for information disclosure. Thus, this part of the defendant's assertion is without merit without further review.

(3) Sub-determination

Ultimately, the disposition that rejected disclosure of the information of this case, other than the personal information of this case, should be revoked as it is unlawful.

4. Conclusion

Therefore, the plaintiff's claim of this case is accepted within the above scope of recognition, and the remaining claim is dismissed as it is without merit. Since the judgment of the court of first instance is unfair with some different conclusions, part of the defendant's appeal is accepted and the judgment of the court of first instance is modified as above, and it is so decided as per Disposition.

[Attachment]

Judges Lee Jin-hun (Presiding Judge)