[Obligor, Re-appellant]
[Obligee, Respondent] Korean Teachers and Education Workers' Union and 16 others (Legal representative: Law Firm Now and 1 other)
[Decision of the Court Below] Seoul High Court Decision 2010Ra1306 dated February 8, 2011
[Order]
The re-appeal is dismissed in its entirety. The costs of the re-appeal shall be borne by the re-appellant.
[Reasoning] The grounds for re-appeal are examined.
1. As to the First Ground for Re-appeal
The court below premised its decision on the principle that, even in the case of a member of the National Assembly, unless the Constitution (헌법) and statutes specifically grant the member of the National Assembly an independent authority, civil disputes arising between such member and other persons as a result of the member's conduct are subject to the Civil Procedure Act (민사소송법) and the Civil Execution Act (민사집행법) in the same manner as with ordinary individuals. Based on this premise, the court below held that the court has jurisdiction over this provisional injunction application, which seeks to resolve the civil dispute surrounding the disclosure of the information at issue, for the following reasons: (i) the act of disclosing the information at issue, which the obligees seek to prohibit against the obligor in this provisional injunction application, is an act performed outside the National Assembly and is a factual act that any ordinary individual could likewise perform, and neither the Constitution nor any statute specifically grants a member of the National Assembly independent authority with respect to such an act; (ii) even if the obligor obtained the information at issue in the course of performing his duties as a member of the National Assembly, disclosing it to the outside world outside the National Assembly is a separate act, and absent any separate procedure or legal basis therefor, it cannot be regarded as an exercise of the constitutional authority of a member of the National Assembly; and (iii) it is clear that the obligees filed this provisional injunction application against the obligor as a natural person, with the preserved right being the right to seek an injunction against infringement of personality rights, the right to one's name, the secrecy and freedom of private life, and the right to control one's personal information, all of which are civil claims.
Upon examining the reasoning of the decision of the court below in light of the relevant legal principles and the record, the above determination of the court below is justified, and there is no error of misapprehending the legal principles concerning jurisdiction over a provisional injunction application, as alleged in the grounds for re-appeal.
2. As to the Second Ground for Re-appeal
Where two fundamental rights conflict with respect to a single legal relationship, the conflict must be resolved through a balancing of interests that comprehensively considers the specific circumstances of the case, together with an interpretation seeking practical harmony between the two fundamental rights, and the final determination as to the illegality of the conduct in question must be made in light of the limits on the exercise of each fundamental right as determined by such balancing (see Supreme Court en banc Decision 2008Da38288 dated April 22, 2010). In this process of balancing interests, first, the factors belonging to the sphere of the infringing act include the content and significance of the interest sought to be achieved by the infringing act, the necessity and effectiveness of the infringing act, the subsidiarity and urgency of the infringing act, and the reasonableness of the method of infringement; second, the factors belonging to the sphere of the interest infringed include the content and significance of the infringed legal interest, the degree of harm suffered by the victim as a result of the infringing act, and the value of the infringed interest that warrants protection; and the burden of proving that an act which has been evaluated as constituting a tort, by virtue of having intruded upon the protected sphere of a right, is nevertheless not unlawful rests upon the person who asserts such non-illegality (see Supreme Court Decision 2004Da16280 dated October 13, 2006).
The court below held as follows: where a student or a parent collects information regarding whether a particular teacher has joined a labor union, or information regarding a particular labor union, and demands the provision thereof, beyond the scope of disclosure prescribed by the Act on Special Cases Concerning the Disclosure of Information by Education-Related Institutions (교육관련기관의 정보공개에 관한 특례법) and its Enforcement Decree, this inevitably results in an infringement of the teacher's right to self-determination of personal information, which derives from the teacher's personality rights protected under the Constitution and other laws, or of the teacher's and the labor union's right to organize; accordingly, the right to know of students or parents comes into conflict with these fundamental rights of teachers and labor unions, and it is necessary to examine what interpretation or method could achieve practical harmony between these conflicting fundamental rights in order to determine whether the act in question is permissible; it cannot be concluded, without limitation, that access to, collection of, and disclosure of information regarding whether individual teachers have joined a labor union or information regarding a particular labor union is permitted on the basis of the right to know of students or parents, beyond the scope of disclosure under the Act on Special Cases Concerning the Disclosure of Information by Education-Related Institutions and its Enforcement Decree. Based on the circumstances set forth in its reasoning, the court below determined that it is insufficient to conclude that broadly disclosing the information at issue, which includes the list of teachers who have joined the Korean Teachers and Education Workers' Union, to the general public via the Internet is an act that is necessarily required or must be permitted for the sake of students' right to learn, parents' right to education and their consequent right to choose education, or their right to know, to a degree that would justify the resulting infringement of the right to self-determination of personal information and the right to organize. On this basis, the court below rejected the obligor's assertion that the act of disclosing the information at issue is not an unlawful act infringing upon the obligees' fundamental rights.
Upon examining the reasoning of the decision of the court below in light of the aforementioned legal principles and the record, the above determination of the court below is justified, and it cannot be said that there is any error, as alleged in the grounds for re-appeal, of misapprehending the legal principles concerning the public's right to learn, right to know, secrecy and freedom of private life, and right to organize, or misapprehending the legal principles concerning the balancing of interests.
3. As to the Third Ground for Re-appeal
The court below premised its decision on the principle that, in determining the necessity of the provisional injunction sought by the obligees, it is necessary to comprehensively consider such factors as the specific nature and content of the preserved right, the circumstances leading to the filing of the provisional injunction application, the anticipated outcome of the merits litigation, the content and degree of the harm the obligees would suffer if the provisional injunction were not issued, and the disadvantage the obligor would suffer from the execution of the provisional injunction. Based on this premise, the court below comprehensively considered the various circumstances set forth in its reasoning and determined that it is necessary to order the obligor not to disclose, via the Internet or otherwise, or disclose to the media, the portion of the information at issue relating to the obligees, and accordingly held that the necessity for preservation had been shown with respect to this provisional injunction application.
Upon examining the reasoning of the decision of the court below in light of the relevant legal principles and the record, the above determination of the court below is justified, and there is no error of misapprehending the legal principles concerning the necessity for preservation, as alleged in the grounds for re-appeal.
4. Conclusion
Accordingly, the re-appeal is dismissed in its entirety, and the costs of the re-appeal are to be borne by the losing party. This decision is rendered as set forth in the Order, with the unanimous consent of the Justices participating in the decision.
Justice Min Il-young (Presiding Justice), Lee Hong-hoon (Justice in Charge), Kim Neung-hwan, Lee In-bok