[Interview file] How to view the suspicious documents of the judiciary-Content analysis and judgment criteria

Among the things that Justice Minister Choo Mi-ae proposed on November 24 as a disciplinary charge by Prosecutor General Yoon Seok-yeol is the so-called'Illegal Inspection Document of the Court' that continues to be controversial. Prosecutor General Yoon Seok-yeol released the entire contents of the document based on the data submitted by the Supreme Prosecutors' Office on November 26, but the controversy has not subsided. Among the judges who have been the subject of so-called'inspections', some criticize them as'illegal inspections of judges', while others respond,'I feel bad, but I don't even call them illegal inspections.'

Even if you look at the reports from various media outlets, only the articles that stand out by picking out the most favorable or unfavorable points depending on the point of view on the document do not appear to be many reports that introduce or analyze the entire contents in a fair and detailed manner. Media companies with a view that the document is an illegal inspection report that the document contains information related to the propensity of judges, such as "Whether to include the Korean Law Research Association" or "The list of judges of water," or "scary" that should not be disclosed. In addition, media companies that take the view that they are not illegal temples are reporting in a way that most of them are insignificant information such as personal hobbies that appear in the legal profession.

In this coverage file, the entire content (information) in the document is categorized and analyzed to determine where there are no controversial topics, how much controversial topics, and whether this document can be defined as a'illegal inspection' document. I'm going to give a standard.

First, let's look at the exact title of the document.

[Analysis of the judiciary in major special and public security cases].

This document was produced on February 26, 2020 by the Office of the Supreme Prosecutor's Office of Investigation and Information Policy.

The length is 9 pages, and the author is Prosecutor Seong Sang-wook (then, chief prosecutor in charge of investigation information 2).

This document contains information on 37 judges from 13 judiciaries who are in charge of "major special and public security cases," where the prosecution's command and public opinion are focused.

in the document for 37 judges can be classified into the following categories.

Information that does not fall into one of the categories below is not in the document.

This is a category that I have classified according to the nature of the information to analyze the content of the document.

(The full text of the document will be posted at the bottom of the report file. You can directly check whether the category and content classification that I set is appropriate.)

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document (the entire document is reclassified into 8 categories)

1. Name of the defendant in charge / name / rider / Referee or referee status: all 37 persons

2. High school/university reference: 37 persons All of them

3. Mention of past major judgments: 14 (mainly by the judge)

4. Mention of new transfers: 5

5. Mention of published books: 1 person

6,

Mention of

past major positions and selection of excellent judges: 12 people

7 Sepyeong-Trial proceedings and witness newspaper-style evaluation comment: 13 people

8. Sepyeong-Mention of specific research

groups

, family relations, accidents, hobbies, etc.: 3 people (4 sentences)

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Based on the

above, Choo Mi-ae Let's take a look at how we can see the nature of the [Analysis of Major Special and Public Security Cases] that the Minister stipulated as'Illegal Inspection Documents of the Court of Justice'.

First of all, items 1 to 6 out of the 8 categories of information classification are completely public information.

The names of judges, major judgments in the past, whether they are new to the judiciary, published books, major positions, and careers in selecting excellent judges are all information that can be checked with a few internet article searches without even having to look at the legal officer.

Most of the nine-page document is covered by item 7, namely, information about the trial proceedings and witness newspaper style.

It can be assumed that an analysis of the judge's proceedings and the style of the witness newspaper is the primary purpose of the document.

There are not a few topics that may make you feel bad for the judges who are the subject of “separation”, but this seems to be easily heard by the prosecutors or lawyers who have entered the judge's trial.

In addition, the document contains a mixture of positive and negative evaluations of each judge's trial proceedings or the style of the witness newspaper.There is a favorable evaluation of judges who are generally considered to be judges with great dissatisfaction with the prosecution. In some cases, there are some negative reviews written on judges who have never expressed a complaint.

Let me give you some examples.

(The full text of the document is attached at the bottom of the report file.)

In conclusion, it is illegal to collect information on category 7 information, judge proceedings, and witness newspaper style, which accounts for the majority of the document. It is difficult to say that it was made of.

The content of the information also seems to be clearly related to the work of the prosecution, a party to the trial.

most controversial topic is item 8.

In other words, it is a reference to whether to join a specific research group, family relationships, hobbies, etc.

Of the nine pages of documents, all four sentences are mentioned.

Particularly controversial is the mention of "Including the list of judges in the 16th year of the Ministry of Government Administration (15. Drinking the day before the holiday watch and waking up late the next day as a duty judge, not present on the date of the warrant examination, reported by the media)."

When Minister Choo Mi-ae announced the reasons for the disciplinary action of President Yoon Seok-yeol on November 24, when he briefly mentioned this point in the document, the prosecutors reviewed the'Mulyagi Judges List', which was obtained through seizure and search during the Judicial Nongdan investigation process. Suspicion arose that it was used illegally to determine the propensity of judges.

In response, Prosecutor Seong Sang-wook (former Supreme Prosecutors' Investigation Information 2 Officer), the author of the document, argued that the contents were not prepared using the investigation data,'Mulyagi Judge List'.

In the process of the trial, there was something related to the judges and the list of'Mulyagi Judges', and after hearing the contents from the trial prosecutor, etc., he explained that it was determined that there is a possibility that the attorney may file an application to evade the court in the future.

The'Mulyagi Judge List' is strictly managed by assigning a password to the file, and it is used in any way other than the purpose of investigation and prosecution, or leaked to the outside. It claims to have never done.

In this regard, multiple prosecutors and attorneys said that the talk of the document on the list of “Mulyagi Judges” came from the trial process of former Supreme Court Chief Yang Seung-tae around the fall of last year.

The name of one of the judges of the judiciary was on the list of ``Mulyagi Judges'' prepared by the court administration for the purpose of penalizing personnel at the time of the former Supreme Court Chief Yang Seung-tae, but the prosecution submitted this as evidence during the trial of the former Supreme Court Chief Yang Seung-tae. Is that they gave an opinion about it.

In other words, if you look at the evidence submitted by the prosecution, the lawyer may have a negative perception of the defendant, former Supreme Court Chief Yang Seung-tae.

(The above information is also acknowledged by the lawyers of the former Chief Justice of the Supreme Court.) Through this, the fact that one of the judges of the court of the Supreme Court Yang Seung-tae is on the'Mulyagi Judge List' has been reported to the inside of the prosecution through a report on the trial process since last fall. It is known, and it is for this reason that this content was included in the document, explained the prosecution officials.

Of course, unlike the explanation of the document author or other prosecutors' officials, the possibility that the Supreme Prosecutor's Office made the document by illegally using the investigation data, the'list of water judges' cannot be completely excluded.

However, it is an objective fact that there was an exchange of opinions between the judge, the prosecutor, and the lawyer on the relationship between the'Mulyagi Judge List' and the relevant judge during the trial of the former Supreme Court Chief Yang Seung-tae, and it seems to be true that this incident was reported inside the prosecution at the time. As such, it does not appear that there was a reason for collecting the information by illegally using the'Mulage Judges List'.

In this regard, the Supreme Prosecutor's Office is being investigated, so you can watch the results.

The mention of the "Korean Law Research Association" was also controversial.

By the way, the word'Korea Law Research Association' was mentioned only once in a short sentence, "Even if you are from the Korean Law Research Association, it is evaluated as reasonable."

It is difficult to regard this as a negative evaluation or expression of hostility based on the fact that the judges were classified based on the membership of the Korean Law Research Association or not.

It seems close to mentioning that he was from the'Korean Law Research Association' as one of his outstanding careers.

If you look at the evaluation of "from Korea Law Research Association or reasonable", the document author seems to have a prejudice that judges from the Korea Law Research Association are irrational, but information that a specific judge has joined the Korea Law Research Association is collected for a specific purpose. It cannot be judged as one.

(Unlike other judges, the'competition' of the judge, including the passage where the'Korean Law Research Association' is mentioned, is a rather positive evaluation. See the full text of the document.) Whether a specific judge joins the'Korean Law Research Association' has already been a long time ago. It is also publicly identifiable information through the [List of Judges of the Korean Law Research Association] previously reported in the media.

It was also a problem that the information on the same judge was described as "the sister-in-law of the second deputy director ○○○."

At first, suspicion was raised that personal information such as the family relations register was illegally collected.

However, the contents of "the sister-in-law of the second vice-director ○○○" were revealed as incorrect information.

The judge was not the sister-in-law (wife's sister) of the ○○○ deputy prosecutor, but the execution (wife's sister).

In addition, the fact that the judge was the execution of the Deputy Chief ○○○ was a widespread story among the judge or a legal profession of the same age who graduated from the same university as the deputy judge.

It was a fact that some of the journalists in charge of legal affairs knew.

(Although it happened after the date of writing, there was also a time when accurate information was reported in the media that'the judge was executed by the Deputy Prosecutor ○○○'.) Therefore, the suspicion that the prosecution illegally collected family relations information is also true. It seems not.

The document does not mention other judges' family relationships.

Regardless of whether or not it is illegally collected, it is also being pointed out whether it is necessary for the Supreme Prosecutor to record the family relationship between the judge and the prosecution officer in the reference materials related to the maintenance of the prosecution.

Considering the fact that the evaluation of the judge was different from the evaluation of other judges, the author of the document is hostile to the prosecution, even though the judge is from the "Korea Law Research Association" because of the relationship between the prosecution officer and his family. It is believed to have given the meaning that it would not.

However, considering the nature of the entire document, the information does not appear to be highly relevant or essential.

The statement that another judge was good at basketball in college also does not appear to be illegally collected information, but it does not seem to be highly related to the statute maintenance work.

A relatively realistic drama about US legal culture [Good Wife], there is a section in which lawyers regularly play basketball to build friendships with judges, and Jeffrey Tubin's non-fiction [The Nine The] describes in detail the US Supreme Court. Nine] also mentions the basketball game of the federal supreme judges and legal professionals. As the author, after the document was distributed on the front line (the document was distributed to some prosecutors involved in the trial), the basketball was looped to the judge and the judge and the court. I think it was in mind that there may be prosecutors trying to communicate.

It does not appear to be essential information for work.

Then, based on the above classification and analysis, let's look at how we can define the nature of the document produced by the Supreme Prosecutors' Office of Investigation and Information Policy.

As mentioned in other report files, an important criterion is 1. illegality of the information collection method and 2. illegality of the purpose of writing in order to correspond to "illegal inspection" as "illegal inspection", which is a civil unlawful act or "existential abuse" of criminal offense. .

Once it is clear that the information in the document as seen so far is a simple collection of public facts (categories 1-6), or has been evaluated by acquaintances (category 7), or considering other objective facts. Information that appears to have been heard through acquaintances without using illegal means (category 8).

It is judged that the illegality of the method of collecting information has not been established.

In addition, regarding the purpose of the preparation, President Yoon Suk-yeol and prosecutor Sung Sang-wook, the author of the document, argued that the purpose of the trial was to provide reference materials useful for the trial to prosecutors involved in conducting the trial.

(Unlike general criminal cases, major special-public security cases are conducted by the Great Sword Anti-corruption Department and the Great Sword Public Criminal Department. The related affairs are handled by the Great Sword Anti-corruption Department Researcher and the Great Sword Public Criminal Department researchers.)

Of course, the purpose of writing an unknown real purpose is the Supreme Prosecutor's Office. The possibility of being revealed through investigation cannot be ruled out, but most of the contents of the document are analysis of the judge's proceedings and witness newspaper style, which is category 7, and classification of the propensity of judges according to certain criteria, but in grasping the political propensity, etc. In light of the fact that there is no point that can be considered as having a purpose, there seems to be no reason to suspect that the purpose of the document is other than the purpose of supporting prosecution.

However, apart from whether civil illegal acts or criminal offenses have been established, the actions of the Supreme Prosecutors' Office of the Supreme Prosecutors' Office to collect information related to the judges of the judiciary, not by the trial department of each prosecutor's office, are those stipulated in the Administrative Regulations,'Separation of the Office of the Supreme Prosecutors' Office. Some argue that it is an act that has deviated from the scope of the department's job duties, and is therefore inappropriate and is administratively a ground for disciplinary action.

In other words, it is an administratively "illegal" act, even if it is not a civil illegal act and is not a criminal offense, and therefore it is a claim that it is a "illegal inspection" against a judge.

In this regard, Prosecutor Sung Sang-wook, the author of the document, said that the "investigation information" collected by the Supreme Prosecutor's Office of Investigation Information Policy includes not only information related to the case under investigation, but also information related to the case that the prosecution is in prosecution after prosecution. He argues that it is also explained in the internal guidelines that stipulate the duties of the Supreme Prosecutor's Office of Investigation and Information Policy.

The Ministry of Justice and the document creator are disagreeing over whether the act of collecting information falls within the scope of their duties.

However, even if the information on the case being held in prosecution after prosecution cannot be viewed as "investigation information," therefore, it is difficult to say that illegal acts or grounds for disciplinary action are established immediately even if the collection of related information cannot be considered to be within the scope of the job. It.

This is because just because a public official has done something outside the scope of his/her duties specified in the administrative rules cannot be regarded as unconditional unfair conduct, illegal conduct, or grounds for disciplinary action.

For example, in the'Separation of Office Regulations of the Supreme Prosecutor's Office', which regulates the scope of duties of the Office of Investigation Information Policy, Article 7 also stipulates the scope of duties of the'Human Rights Policy Officer'.

This is "Matters concerning the overall planning, coordination, command and supervision of tasks such as human rights protection policies related to the prosecution's office, human rights violation prevention and supervision, gender equality policies within the prosecution office, and the prevention and supervision of sexual abuse".

This is clearly different from the scope of the investigation and information policy officer's job.

However, even if the Supreme Prosecutor's Office of Investigation Information Policy has collected and reported data or information on the “sexual equality policy” that cannot be viewed as “investigation information”, it will not be interpreted as an unfair act or disciplinary reason.

This means that in order for an illegal act, unfair act, or reason for disciplinary action to be established, the action taken outside the scope of the job must be evaluated as an unfair act, such as limiting the rights of others.

Even if it is an act of collecting information outside the scope of the job, if this is an act that has nothing to do with the restriction of the rights of others, such as collecting information related to the gender equality policy, it cannot be considered as a reason for disciplinary action. It is a reason.

The question will be whether the Supreme Prosecutor's Office of Investigation and Information Policy Office can evaluate the collection of information related to judges as closer to either side.

is worth referring to the precedent on the right to self-determination of personal information declared by the Supreme Court on August 17, 2016.

The purpose of this ruling is "Criteria for judging whether the act of collecting public personal information for profit and providing it to a third party without separate consent of the data subject violates the right to self-determination of personal information or violates the Personal Information Protection Act. "Is presented.

Collecting all kinds of personal information, including publicly disclosed personal information without the consent of the parties, can be viewed as an infringement of the right to self-determination of personal information, but it is possible to collect and process personal information without the consent of the parties. This is what the Supreme Court explained.

First, the Supreme Court presents precedent precedents as one of the grounds for judgment.

"Is the subject of the information public, the publicity and public interest of personal information, the scope of the original disclosure, the significance and necessity of the purpose, procedure, and form of use of personal information processing, the nature and content of profits that may be infringed by the processing of personal information? Taking into account various circumstances comprehensively, the benefits that can be obtained from the protection of personal information regarding personal information and the benefits that can be obtained from the information processing activities, that is, the right to know of the information controller and the right to know and expression of the recipient of information based on this The value of freedom of freedom, freedom of business of the information controller, and economic efficiency of the society as a whole should be compared and punished in detail to determine whether the information processing act is ultimately illegal according to which profit can be evaluated as superior, and Just because the information controller had a for-profit purpose, it cannot be said that the act of processing the information is illegal." (Supreme Court on September 2, 2011 sentenced 2008 Da42430 All-Agreement ruling, Supreme Court 2014. 7. 24. 2012 49933 judgment, etc.).

In view of this, the Supreme Court proposes the following as a basis for determining that there is no illegality in the case of a third party reusing information that has already been disclosed.

"When collecting, using, and providing personal information that has already been disclosed to the extent that it is objectively recognized as having consent of the information subject, it should be considered that the separate consent of the information subject is unnecessary, and such separate consent is not obtained. However, it cannot be considered as a violation of Article 15 or Article 17 of the Personal Information Protection Act, and the nature of the disclosed personal information, the type and scope of disclosure, and the information that is inferred from it is within the scope of the consent of the information subject. Not only the subject's intention or purpose of disclosure, but also the type of processing, such as the provision of information by the controller, and whether the scope of the disclosure has changed from the original one, and the provision of the information is significantly related to the original purpose of disclosure of the data subject. You will have to make an objective judgment by reviewing whether or not."

In the end, in the end, based on these standards, the Supreme Court decided that even if the "personal information that was in question in the case was collected and provided to a third party, the legal benefits that can be obtained by preventing such information processing" "Because it is superior to personal legal interests, the defendant's actions cannot be evaluated as an illegal act that violates the plaintiff's right to self-determination of personal information."

(Supreme Court ruling 2014 Da 235080)

Considering

this applies to the collection of information related to the judge by the Supreme Prosecutors and the act of creating documents, the Office of the Supreme Prosecutor's Investigation Information Policy Office collects the public information and performs related tasks. It is necessary to evaluate whether or not the legal interests obtained from the acts provided to prosecutors are superior to the personal legal interests of judges that can be obtained by blocking such acts (information processing). It can be interpreted as being able to judge whether the act of writing a document is unfair or illegal.

In addition, if the act of collecting information and writing documents is not unfair or illegal, it can be said that it is difficult to consider it as a ground for disciplinary action, even if it is out of the scope of the duties under the administrative rules of the Office of the Supreme Prosecutor's Office.

(In theory, it could be argued that a deviation from the scope of work alone could be a reason for disciplinary action, regardless of whether or not it is unfairly committed, but even so, it would be an extremely light disciplinary action. the distance is far away.)

Consequently, collecting judge-related information, such as the act of a bayonet investigation Policy Bureau seems to have collected the information known through such acquaintances information or legal public through media journalists, NGOs, law firms act Likewise, whether the legal benefits obtained by this can be seen as superior to the personal legal interests of judges that can be obtained by blocking them, or, unlike in the case of private institutions, the legal benefits obtained by writing the documents of the great prosecution do not reach the personal legal interests of the judges. Being able to see it can be seen as a key criterion for determining whether a reason for discipline exists.

If the legal terms are removed and replaced with ordinary words, it means that'is the act of using public information to this extent acceptable or unreasonable?', leaving the controversy on the scope of the job, is the criterion for judging the Great Sword's act of writing documents. can.

You will be able to make your own judgment based on the classification and analysis of the entire contents of the document presented through this report file so far, and the explanation of the writing process.

of the report file The purpose of this report file is not to unilaterally assert that the act of writing a document by the Supreme Prosecutors' Office of [Analysis of Major Special and Public Security Cases] is an illegal inspection or a legitimate act.

Even if it was judged that the grounds were weak, even though it was not an illegal inspection, but the grounds for disciplinary action were still weak, it would have been better if the Great Swordsman Department in charge of each case or the High Swords Trial Department in charge of each case would have been better than the Office of the Great Swordsman Investigation Information Policy Office. In light of the past controversy of the Office of the Policy Office, it can be pointed out that a precautionary measure is needed to prevent the collection of information from judges from being transformed into activities with other unreasonable purposes.

This report file was prepared to accurately categorize and present the contents of the so-called'Illegal Inspection Suspicion of the Court of Justice' document that too many people mentioned but did not actually open the contents properly, and to provide the basis for judgment.

I hope that this report file will help you to judge yourself about the disciplinary controversy of President Yoon Suk-yeol, which has already engulfed the entire Republic of Korea in controversy for nearly fifteen days.

Thanks for reading.

[Attachment] Full text of'Analysis of the Judiciary in Major Special and Public Security Cases' (p. 9)