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A Study on Judicial Precedents of Exemption to Disclosure in accordance with the Korea Information Disclosure Act
Public Land Law Review
Abbr :
KPLLR
2009, 45(), pp.319-358
Publisher : Korean Public Land Law Association
Research Area : Law
2009, 45(), pp.319-358
Publisher : Korean Public Land Law Association
Research Area : Law
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An administrative authority tries to, or at least tends to, be of non-disclosure during the enactment of information disclosure act, which is why it's controversial to excessively extend non-disclosure in terms of its legal interpretation; actually, they point out that reasons for, and the scope of, non-disclosure specified by the same act are abstract, comprehensive and vague. An "indefinite" aspect of the term has caused public institutions to make, in accordance with their own arbitrary interpretation, decisions on a basis of non-disclosure, which, in turn, leads to a suit against them that would end up losing the suit. With regard to such exemptions to disclosure, this study reviews and analyzes their judicial precedents from South Korea and Japan by case of non-disclosure whose abstract and comprehensive concepts are provided by the clause 9.1 of the Korea Information Disclosure Act, aiming to identify what they imply, how they can be concretized, and what kinds of considerations are referred to in pronouncing comparative sentences related to information disclosure. As a result of analyzing those precedents, it's been found that there are lots of clauses yet to be more concretely interpreted, although somewhat concrete criteria have been provided through related precedents. To solve such problems, there is a need to establish detailed criteria for reasons for non-disclosure, since ex ante remedies rather than ex post ones are more important in that there is no way to, if information has been disclosed, put such situation back as they were not. It's recommended that enforcement ordinances or regulations based on well-established theories or precedents, not administrative rules without any enforcement, be provided in establishing such detailed criteria. For the purpose, it's expected that this study will help do so such as it is.
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