공공기관에 대한 문서제출명령의 개선방안에 관한 소고

In 2002, Korean Code of Civil Procedure(hereinafter, “KCCP”) 344 ② was amended to establish general duty of producing evidentiary documents. However, KCCP 344 ② also created huge loophole, at the same time, for the documents possessed by public organization, including Nation, local authority, and even public enterprise. Hence the documents are excluded from the documentary discovery once and for all, if they fall under the category of publicly held documents. This exception was intended to harmonize KCCP and Korean Freedom of Information Act(hereinafter, “KFOIA”), which I have not agreed upon. Is it rational to exclude all the possible publicly-held evidentiary documents from civil procedure, just because it can be collected under different procedure? Hence I suggest that the exception under KCCP 344 ② should be eliminated to create a general duty to produce publicly-held documents. However, in appropriate circumstances, certain documents are still needed to be withheld from general duty on the basis that discovery would undermine the public interest(hereinafter, “public-interest document”). Then two questions has arisen: who determines the public-interest(or ‘confidentiality’), and what falls under the category of public-interest document. At first, under KCCP 344 ① 3 가 and related provisions(KCCP 304-306), the Governmental Agency, which possesses the documents, have full discretion to decide confidentiality of documents held by the agency. Hence if the Agency decides not to divulge, the Court have no choice but to follow. This brought about unjust concealment of governmental information. Hence it would be more desirable to put this matter under judicial determination. Secondly, proper wording should be chosen to harmonize KCCP and KFOIA, if KCCP 344 is amended to give the power of review on confidentiality to the judiciary. Under KFOIA, all the people can move for the disclosure of information, whereas only the parties who have real interest in the claim can move for the production of documents under KCCP. Hence, the scope of discoverable documents under KCCP should be broader than that under KFOIA. However, current KCCP 344 do not provide what is the standard of confidentiality, because it does not have to do so. The only possible wording of the standard of confidentiality is those provided under KCCP 307, which I think too narrow. Hence I suggest to create relatively broad wording in KCCP 344 referring to Japanese Code of Civil Procedure 220 (4) (ロ).