〈Case in which, when a telecommunications business operator refused, on the basis of the provisions of the Protection of Communications Secrets Act, to comply with a court's order to produce documents requiring the production of communication confirmation data as defined in the Protection of Communications Secrets Act, an administrative fine was imposed as a sanction therefor〉

【Holding】

Whether a telecommunications business operator may refuse to produce communication confirmation data in response to a court's order to produce documents concerning such data, on the basis of the main text of Article 3(1) of the Protection of Communications Secrets Act (negative)

【Summary of Order】

[Majority Opinion] A court may issue an order to produce documents with respect to communication confirmation data on the basis of Article 344 et seq. of the Civil Procedure Act, and a telecommunications business operator is, absent special circumstances, obligated to comply therewith; a telecommunications business operator's refusal to produce the communication confirmation data that is the subject of an order to produce documents, citing the main text of Article 3(1) of the Protection of Communications Secrets Act, cannot be regarded as having justifiable grounds. The reasons are as follows.

(1) In light of their respective legislative purposes, matters regulated, and scopes of application, the Protection of Communications Secrets Act and the Civil Procedure Act are statutes each having its own independent legislative purpose in its own domain, so that the scope of application of each provision may be determined in light of the purport of the respective provisions; even though the Protection of Communications Secrets Act contains no express provision as to whether communication confirmation data may be provided pursuant to an order to produce documents under the Civil Procedure Act, it cannot be concluded that the provisions of the Civil Procedure Act concerning evidence are fundamentally inapplicable.

(2) Since the Protection of Communications Secrets Act already permits the provision of communication confirmation data by the method of commissioning an examination as prescribed in Article 294 of the Civil Procedure Act, interpreting communication confirmation data as being subject to an order to produce documents cannot be regarded as contrary to the legislative purpose of the Protection of Communications Secrets Act or as an expansive interpretation exceeding the possible scope of the statutory text.

(3) The legislative purpose of the Protection of Communications Secrets Act can be sufficiently realized through the court's operation of the system of orders to produce documents after careful and rigorous examination.

Since the Protection of Communications Secrets Act prohibits, as a rule, the provision of communication confirmation data in order to protect the secrecy and freedom of private life and conversation, when a court examines and issues an order to produce documents with respect to communication confirmation data, it must, taking into account this legislative purpose of the Protection of Communications Secrets Act, determine the necessity and relevance thereof through a rigorous balancing of the secrecy and freedom of communication and conversation against the need for a proper and speedy trial.

Accordingly, the court must carefully decide whether to grant an application for an order to produce documents and the scope thereof, by examining whether the contents and period of the communication confirmation data that is the subject of the application are closely relevant to the matters to be proven as presented by the applicant, and further, whether, if the matters to be proven are found to be true through documentary examination of that document, the specific facts asserted by the applicant can be inferred on the basis of such facts.

[Concurring Opinion of Justice Kim Seon-su] (1) An administrative fine proceeding for non-compliance with an order to produce documents is a procedure for compelling performance of an order to produce documents that has already been issued, not a procedure for contesting the lawfulness or propriety of the order to produce documents itself. For this reason, the matters that may be contested in an administrative fine proceeding concerning an order to produce documents are whether there are justifiable grounds for non-compliance with the order, and the like, and the lawfulness of the order to produce documents itself is not included. Therefore, in an administrative fine proceeding, which is a subsequent procedure for securing enforcement of a final order to produce documents, it is not permissible to contest the lawfulness of the final order to produce documents on the basis of circumstances that could have been asserted in the preceding procedure.

(2) Whether an order to produce documents may be issued with respect to communication confirmation data should be determined in earnest in a case concerning the order to produce documents itself. Rendering a determination on that issue in the present case, which is an administrative fine proceeding in which the lawfulness of the order to produce documents itself cannot be directly addressed, is inconsistent with the provisions of the Civil Procedure Act and the existing legal principles; accordingly, it is appropriate to determine that issue when it arises in another case concerning an order to produce documents in the future.

[Dissenting Opinion of Justice Ahn Chul-sang, Justice Min You-sook, Justice Noh Jeong-hee, and Justice Oh Seok-jun] A court may not issue an order to produce documents with respect to communication confirmation data on the basis of the provisions of the Civil Procedure Act concerning orders to produce documents. Even if a court issues such an order, a telecommunications business operator may refuse, citing the Protection of Communications Secrets Act, to produce the communication confirmation data that is the subject of the order to produce documents, and the court may not impose an administrative fine on the telecommunications business operator on the ground of such non-production.

(1) The Protection of Communications Secrets Act imposes on telecommunications business operators, which provide services that mediate the communications of others using telecommunications facilities or provide telecommunications facilities for the communications of others, a strong general prohibition under which communication confirmation data may not be provided to anyone unless an exception prescribed in the Protection of Communications Secrets Act applies; it merely specifies Article 294 of the Civil Procedure Act, concerning the commissioning of an examination or of the sending of documents, as the exceptional method by which communication confirmation data may be provided to a court, and does not even prescribe a duty of cooperation on the part of telecommunications business operators in that regard.

(2) There exists a conflict of norms as to whether a telecommunications business operator bears an obligation to produce communication confirmation data to a court.

An order to produce documents imposes on the third party who receives the order a duty to produce the documents and imposes a sanction in the form of an administrative penalty for its violation. By contrast, the Protection of Communications Secrets Act imposes a prohibitory duty under which communication confirmation data may not be provided to anyone unless an exception prescribed by law applies.

If a telecommunications business operator, judging that it must not produce communication confirmation data under the Protection of Communications Secrets Act, refuses to produce it, the result is that it violates the duty of production under the order to produce documents prescribed in the Civil Procedure Act; thus, the two norms cannot coexist, and a conflict exists between them.

(3) Inasmuch as there exists a conflict of norms as to whether a telecommunications business operator bears an obligation to produce communication confirmation data, this situation must be resolved by giving priority to the Protection of Communications Secrets Act as the special law.

【Referenced Statutes】

Article 27(1) of the Constitution; Articles 1, 311(1), 318, 344, 347, and 351 of the Civil Procedure Act; Articles 1, 2, 3(1), and 13-2 of the Protection of Communications Secrets Act

【Referenced Precedents】

Supreme Court Order 2010Ma1659, July 6, 2011
Supreme Court Order 2014Ma2239, July 1, 2016 (Gong 2016Ha, 1033)