(영문) 서울고등법원 2018.5.10. 선고 2016누82487 판결

A. Upon the selective claim added by the Plaintiff in this court, the part concerning the information listed in the separate sheet No. 1 among the non-disclosure dispositions made against the Plaintiff on April 10, 2015 shall be revoked.

B. The plaintiff dismissed the remainder of the selective claims added by this court.

2. 50% of the total litigation cost shall be borne by the Plaintiff, and 50% by the Defendant, respectively.

Purport of claim and appeal

1. Purport of claim

A. On April 10, 2015, the Defendant revoked a non-disclosure disposition regarding the information listed in the separate sheet No. 2 attached hereto against the Plaintiff (hereinafter referred to as “first claim”).

selectively,

B. On April 10, 2015, the Defendant revoked a non-disclosure disposition regarding the information listed in the attached Table 3 List against the Plaintiff (hereinafter referred to as “second claim”) (hereinafter referred to as “second claim”).

2. Purport of appeal

The judgment of the first instance shall be revoked. The plaintiff's claim of the first instance is dismissed.

Reasons

1. Details of the disposition;

A. On March 19, 2015, the Plaintiff requested the Defendant to disclose the documents related to the field of intellectual property rights (section 18 of the Agreement), which the negotiating group provided to the U.S. negotiating group in relation to the prior practical inspection meeting of the Korea-U.S. FTA, non-official pre-consultations, official negotiations, additional negotiations, and performance inspections, and documents provided by the negotiating group in the U.S. and documents related to the draft documents and subsequent amendments to Chapter 18 of the Korea-U.S. FTA (referred to as “information subject to disclosure request” hereinafter) as well as information related to the draft documents and subsequent amendments thereto in Chapter 18 of the Korea-U.S. FTA.

B. On April 10, 2015, the Defendant rendered a decision to keep information confidential to the Plaintiff on the ground that the information subject to disclosure requests falls under “information pertaining to diplomatic relations, etc., as provided by Article 9(1)2 of the Official Information Disclosure Act (hereinafter “Information Disclosure Act”) and, if disclosed, is likely to seriously undermine the national interest (hereinafter “instant disposition”).

[Ground of recognition] Unsatisfy, entry of Gap evidence 2, purport of whole pleadings

2. Relevant statutes;

Article 9 of the Information Disclosure Act (Information subject to Non-Disclosure)

(1) Information held and managed by public institutions shall be subject to disclosure: Provided, That any of the following information may not be disclosed:

2. Information pertaining to national security, national defense, unification, diplomatic relations, etc., which, if disclosed, is deemed likely to seriously harm national interests.

3. Judgment 2 on the second claim

A. As to the information held and managed by the Defendant among the information for which the Plaintiff seeks disclosure

1) Existence of information disclosure obligation

According to the main sentence of Article 9(1) of the Information Disclosure Act, in principle, a public institution is obliged to disclose information held and managed by the public institution. However, in cases where a requester for disclosure does not hold and manage specific information by a public institution, there is no legal interest to seek revocation of a disposition rejecting disclosure of the relevant information, barring any special circumstance. In this regard, the requester for disclosure bears the burden of proving that it is highly probable that he/she is holding and managing by a public institution (see, e.g., Supreme Court Decision 2010Du18918, Jan.

In addition to the purport of the entire pleadings as a result of the Defendant’s perusal and examination of the materials submitted by the court of first instance pursuant to Article 20(2) of the Information Disclosure Act, the Defendant is recognized as holding and managing the information listed in the separate sheet No. 1 among the information subject to disclosure request. Therefore, barring any special circumstance, the Defendant is obliged to disclose the said information to the Plaintiff (hereinafter “instant information”).

2) Judgment on the defendant's assertion

A) Summary of the Defendant’s assertion

The instant information includes all negotiations strategies between the two countries, such as data on the position of each sector and each issue regarding the negotiation, etc. of the Korea-U.S. Free Trade Agreement (hereinafter referred to as the "Korea-U.S. Free Trade Agreement"), patent rights, copyrights, etc., data on case analysis related to infringement, and the Government's response policies, issues lists and amendments to each issue, compromise proposals that may be taken into account by the two countries, and Pakage Degal composition of the remaining issues.

For instance, as the order of priority in carrying out the parts to be carried out and compromises, concessionable parts, etc., the negotiation strategies of our government may be disclosed externally if disclosed. Likewise, if the instant information is disclosed, there is a high possibility that the basic position of our government at the time of the negotiation of the Korea-U.S. FTA, negotiation strategies, etc. may be published, and there is a high possibility that it will be utilized as the negotiation information of other countries in the future.

In addition, if the information of this case is disclosed, there is a high possibility of conflict of interest between the Korea and the U.S.A.A. FTA, which can be developed in the future, undermining the interests of the State, which will weaken the negotiating power of Korea and maintain international trust.

In addition, in light of the fact that the Plaintiff’s purpose of demanding the disclosure of the instant information is to use it as data for the compilation of personal works, it can be deemed that the infringement of national interest, which the Plaintiff entered due to non-disclosure, is considerably larger than that of the Plaintiff’s individual interest infringement.

B) Determination

(1) Consumed legal principles, etc.

Since the Free Trade Agreement is a product of the overall agreement to be entered into by combining various items, the meaning of a specific item or the negotiation process alone does not make it possible to grasp the meaning of the entire trade agreement or the nature and contents of the negotiation strategy. Thus, there is a limit to what extent it is impossible to specify or indicate the negotiation strategy or diplomatic disadvantage exposed to the disclosure of the information of this case.

However, in light of the legislative purpose of the Act on the Disclosure of Information by Public Institutions, which is based on the principle that information held and managed by public institutions should be disclosed to the people with a view to guaranteeing the people's right to know and securing the people's participation in state affairs and transparency in state administration, it shall be strictly determined whether such information constitutes information subject to non-disclosure, which is the grounds for exceptions, should be strictly determined. In rejecting information disclosure on the grounds of the same reason, such as "constition to seriously undermine the national interest," it is apparent that the interests of the State protected by non-disclosure are greater than the interests of the people that can be enjoyed by the information disclosure, such as guaranteeing the people's right to know, securing the people's participation in state affairs, and securing the transparency in state administration. Therefore, even when considering the special nature of diplomatic and trade negotiations, it should be argued and proved to the extent that it can be reasonably determined, and the existence of non-disclosure grounds should not

Furthermore, considering the fact that the information of this case is already in an excessive state in which the Korean government and the U.S. government have agreed on the non-disclosure period, more careful consideration should be given to determine whether the information of this case is non-disclosure.

(2) Specific determination

(A) The reasoning for this Court’s explanation is as follows: (a) the written judgment of the first instance court, except for the partial revision as follows, is identical to that of the 4th to that of the 8th to that of the 8th of the 4th of the written judgment; and (b) thus, it is accepted in accordance with Article 8(2) of the

(B) the amended portion

The judgment of the court of first instance is divided into "(1)", "(7) 8(3)", "8(4)", and "8(3)", respectively.

○ In Part 4 of the Judgment of the first instance court, “This Court shall add “the first instance court” to the foregoing.

The judgment of the court of first instance, on the 7th page 19th "influence", is "influence" or "influence of Korea's negotiation with regard to the amendment of the Korea-US FTA".

In the judgment of the court of first instance, it is difficult to say, "(fe.g., it is difficult to see" in the 7th part of the judgment of the court of first instance, "(fe.g., it is difficult to see that the Republic of Korea and the United States, on March 28, 2018, concluded negotiations on the amendment of the Korea-U.S. FTA, according to reference materials submitted by the plaintiff after the closure of the argument in this case. The areas subject to the amendment agreement or consultation are investment, customs, automobile trade, trade remedy, pharmaceutical, customs, textile, and textile, which are not included in the intellectual property rights field of which

3) Sub-committee

Therefore, the part of the disposition of this case which decided non-disclosure on the ground that the information of this case constitutes information under Article 9(1)2 of the Information Disclosure Act shall be revoked as it is unlawful.

B. In the case of the remaining information except for the instant information, the evidence submitted by the Plaintiff and the records submitted by the court of first instance pursuant to Article 20(2) of the Information Disclosure Act are insufficient to acknowledge the probability that the Defendant is holding and managing them in a closed manner, and there is no other evidence to acknowledge it. Therefore, as to the part of the instant disposition that decided not to disclose the remaining information except for the instant information, there is no legal interest to seek revocation thereof.

4. Conclusion

Therefore, the part concerning the information of this case among the dispositions of this case shall be revoked in accordance with the second claim which was selectively added by the plaintiff in the trial, and the remainder of the second claim shall be dismissed, and the judgment of the court of first instance shall be modified as above.