Summary
Permitting access to records and prohibiting use that harms reputation or the tranquility of private life are separate determinations.
6.1The Standard by Which the Path Opens
Even when the route by which materials were obtained is lawful, the manner in which they are used may harm people. This circumstance puts first the question of when the entrance to this stage opens. The preceding section concluded that the disclosure of judgments includes undetermined cases while simultaneously observing statutory exclusions and the protection of personal information. Even after receiving that conclusion, the same argument is not repeated. The theme of this section is the distinction that permitting access to records and prohibiting uses that harm honor and the peace of daily life are separate determinations, and it begins with the task of not confusing the different access requirements for hearings, judgments, and litigation records.
What a person who has inspected or copied litigation records may not do is set out in Article 162(4) of the Civil Procedure Act. Its text provides: “A person who has inspected or copied litigation records shall not use matters learned through such inspection or copying to harm public order or good morals, or to harm the honor or the peace of daily life of persons concerned.” The subject of this text is the person who possesses matters learned through inspection or copying; the prohibited act is the use of such matters; and the condition is the case in which public order or good morals are harmed, or the honor or the peace of daily life of persons concerned is harmed.
Linking that condition to the conclusion of this section makes clear that the lawfulness of access itself and the propriety of the use thereafter are distinct stages. Where a person has met the different access requirements for hearings, judgments, and litigation records and has accessed them within the range outside statutory limits, the entrance to this remedy opens. Conversely, circumstances in which the use prohibited by the text is at issue remain the determination made after that entrance has already been passed. If the two determinations are mixed, a person without any qualification to inspect and a person who misused the materials after inspection are bundled together as subjects of the same treatment.
The counterargument that restrictions on use may chill critical research targets concrete losses. If a writing that analyzes and criticizes facts revealed in the records is halted on the ground that it harms the peace of daily life of persons concerned, verification of the content of the open trial disappears. The concern that repeated partial restrictions will in fact undermine the principle of openness arises from the same place. Even so, lawful inspection cannot be converted into a blanket authorization for every republication. While leaving intact the disadvantage of the chilling effect pointed out by the counterargument, the approach of smearing together the permission of access and the prohibition of use is excluded.
In the synthetic scene, Plaintiff A demands production of the entirety of the records on the ground that the trial is open, and Defendant B asserts the risk arising from the exposure of an address. What can be confirmed in this scene is that the performance, parties, and conditions demanded must be specified in the prayer for relief, and that whether the right of the chosen action can be defended is the question. Whether the exposure of an address constitutes the harm to honor or to the peace of daily life spoken of by the text is not determined from this scene alone. If the framing shifts to protection from harm to life or body, the parties may also be included, and therefore it is not handled as a scope of access on the same footing as the protection of secrets. Where the target document or the grounds and scope of the limitation decision cannot be confirmed, the matter remains undetermined.
What this section permits is the determination that, where the access requirements have each been met and access has been made outside statutory limits, the entrance opens when the right of the chosen action can be defended with respect to the performance, parties, and conditions specified in the prayer for relief. What it does not permit is reading the opening of that entrance as unlimited permission of use. The limits on the use of records mean restrictions on the harmful use of matters obtained through inspection, and so long as such a restriction is recognized, the counterargument does not disappear merely by reason of the lawfulness of the inspection.
6.2The Conditions That Block Relief
The analysis of the preceding stage went no further than confirming the premise that the disclosure of judgments includes undetermined cases while simultaneously observing statutory exclusions and the protection of personal information. Taking up that premise, what this stage asks, with respect to records lawfully read, is in what manner the inspection may be used and what the conditions are under which the use itself is blocked. Here, being blocked refers to the state in which access is not permitted or in which a particular manner of use is prohibited, and if the two are judged as one bundle, one cannot distinguish which side has been closed for which reason. This distinction begins with the explanation of the text in the next paragraph.
The text corresponding to this section is Article 162(4) of the Civil Procedure Act, and it reads as follows: “A person who has inspected or copied litigation records shall not use matters learned through such inspection or copying to harm public order or good morals, or to harm the honor or the peace of daily life of persons concerned” (Civil Procedure Act, Article 162). The subject indicated by this text is a person who has inspected or copied litigation records, and the conduct it regulates is the use of matters learned in the course of that process. The prohibited use is limited to the manner that harms public order or good morals, or harms the honor or the peace of daily life of persons concerned, and this is called the limits on the use of records.
This text treats the permission of access and the prohibition of use as separate determinations. As confirmed in the preceding paragraph, the inspection and copying themselves were a route permitted to that person, but the way in which the matters learned thereby are put to use is separately restricted. If this distinction is not maintained and lawful inspection is converted into a blanket authorization for every republication, one is led as far as the conclusion that permission of access is at the same time permission of any republication. The text, however, regulates the fact of access and the manner of use separately, and it does not bar that use apart from the four harmful outcomes designated in the preceding paragraph as prohibited use. Accordingly, the determination turns not on whether the access was lawful but on how the matters thereby obtained were used.
The counterargument that restrictions on use may chill critical research aims at substantive losses. In order that a researcher who has inspected the records not write in a manner that may harm the honor or the peace of daily life of persons concerned, it is said, the difficulty of judging which descriptions cross that boundary may lead the researcher to abandon critical review from the outset. Moreover, the concern that repeated partial restrictions may in fact undermine the principle of openness arises in the same context. These losses and inconveniences cannot be denied, but by the same token lawful inspection cannot be converted into a blanket authorization for every republication. There is no need to read the scope of the uses prohibited by the text so broadly as to obstruct research itself, but conversely the lawfulness of the inspection cannot be turned into an argument that any use is permitted. The chilling effect pointed out by the counterargument remains a burden to be addressed while maintaining this distinction.
In this scene, the fact relevant to this question is that Defendant B's assertion points to the exposure of information in a manner that may harm the peace of daily life of persons concerned. The scene, however, goes no further than setting the demand for production of the entirety of the records against the assertion of risk, and does not identify which side's assertion was accepted. Furthermore, where grounds of the relevant secrecy and protection from harm or statutory exclusion are recognized and access to the designated portion is restricted, the remedy pathway is closed if even one of the statutory requirements is not satisfied. Because neither the restriction of access to the designated portion nor the satisfaction of the statutory requirements can be determined from this scene alone, that determination remains undetermined.
The conclusion this section permits is that, even for records whose access was lawfully permitted, using the matters learned therefrom in a manner that harms honor or the peace of daily life is subject to a separate restriction. Conversely, the view that, merely because access was lawful, any republication or use is unconditionally permitted is a conclusion this section does not permit. The limits on the use of records mean restrictions on the harmful use of matters obtained through inspection, and whether that limit has been exceeded is judged on the basis of the manner of use.
6.3The Boundary That Remains When There Is No Data
As confirmed in the preceding section, where grounds of the relevant secrecy, protection from harm, or statutory exclusion are recognized and access to the designated portion is restricted, this remedy is blocked. On the premise of that distinction, the question of how records lawfully read may be used is then presented for consideration. Yet to answer this question, the act of use itself must first be examined, and before that determination there remain the subjects and conditions to be confirmed. Defining the boundary of cases that cannot be judged for lack of materials is the work of this section.
Article 162(4) of the Civil Procedure Act provides as follows: “④A person who has inspected or copied litigation records shall not use matters learned through such inspection or copying to harm public order or good morals, or to harm the honor or the peace of daily life of persons concerned.” The subject regulated by this text is a person who has inspected or copied litigation records; the act is the use of the matters so learned; and the prohibited condition is the case in which the use reaches the point of harming public order or good morals, or the honor or the peace of daily life of persons concerned. This section deals with paragraph (4) alone.
What is determined under this text is a single determination. First, whether the access to the records itself was permitted must be determined, and later, whether the matters thereby obtained were used in a harmful manner is determined separately. In the preceding stage, the mere fact that matters were learned through lawful inspection does not make the later use permissible, and conversely, the existence of restrictions on use does not predetermine whether access is permitted. Here, the limits on the use of records mean restrictions on the harmful use of matters obtained through inspection. The reason for keeping separate the grounds of these two determinations is that, if the lawfulness of access and the illegality of use are combined into the same question, one cannot discern which materials are lacking.
Even when the procedure by which materials were obtained was lawful, if the manner of use is also subject to restrictions, statements necessary for review or criticism may be chilled, and as a result the significance of the open hearing is diminished. The worry that repeated partial restrictions may in fact undermine the principle of openness points in the same direction. Even so, lawful inspection cannot be converted into a blanket authorization for every republication. Because the decision permitting access did not also approve harmful use, the distinction is maintained even while leaving the disadvantage of the counterargument in place.
The facts touching upon this question are only that the open trial was held and that harm arising from the exposure of an address is asserted. Yet what the target document is, and how far the grounds and scope of the limitation decision extend, were not fixed in the scene. In this case the determination remains undetermined. This undetermination is distinguished from the case where the remedy is blocked. The former is a state in which judgment is suspended for lack of materials; the latter is a state in which access has been blocked because the grounds of restriction set out in the preceding section were recognized.
The conclusion this section permits is that, where the target document or the grounds and scope of the limitation decision cannot be confirmed, the determination is left undetermined and is distinguished from the case in which the remedy is blocked. One cannot assert, merely because materials are lacking, that access has been blocked or, conversely, that harmful use has been permitted. Conversely, one cannot relegate to the undetermined the very fact that the confirmed text prescribes the limits on use.
6.4The Records Needed for Determination
How may records lawfully read be used? This question asks where the permission of access to records and the limits on use part ways. Within the scope set by the preceding stage, the record requirements for determining the stage are examined this time.
To answer this problem, the relevant text is Article 162(4) of the Civil Procedure Act. That provision stipulates: “A person who has inspected or copied litigation records shall not use matters learned through such inspection or copying to harm public order or good morals, or to harm the honor or the peace of daily life of persons concerned.” This text takes as its subject the person who uses matters learned through inspection or copying, and takes as its object the act of harming public order or good morals, or the honor or the peace of daily life of persons concerned.
According to that text, the permission of access to records and the prohibition of harmful use are different determinations. If the former asks whether the route of inspection and copying is open, the latter asks how the matters obtained through that route are put to use. In this stage, the limits on the use of records mean restrictions on the harmful use of matters obtained through inspection. Accordingly, even for records lawfully read, if their manner of use produces the harmful results the law prohibits, the same conclusion is not reached.
That said, the worry that restrictions on use may chill critical research cannot be treated lightly. The concern that repeated partial restrictions may in fact undermine the principle of openness also has force. Even so, lawful inspection cannot be converted into a blanket authorization for every republication. The determination that permitted the inspection itself and the determination that looks to whether the use of the matters so obtained harms the honor or the peace of daily life of others must be distinguished.
What is to be seen in this scene is to which determination the demand for production and the concern over exposure belong. Whether access to records is permitted and the prohibition of harmful use of matters obtained through inspection are separate determinations. However, whether the exposure of an address actually led to some harmful use is not determined from this scene alone.
The conclusion this section permits is that the norm prohibiting the harmful use of matters learned through inspection or copying operates separately from lawful access to records. By contrast, the reading that converts lawful inspection into a blanket authorization for every republication is not permitted.
6.5Circumstances That Change the Decision
Where the preceding step confirmed the very permissibility of access to the records, the present question asks where the next point of departure lies. Confronted with this opposition, the adjudicator must determine separately how the adjudicator may use lawfully read records, and what change renders the earlier stage determination void.
The statutory provision corresponding to this question is Article 162 (4) of the Civil Procedure Act. Its wording first identifies the subject and the act: "A person who has inspected or copied litigation records shall not, by using matters learned through such inspection or copy." It then states the prohibited result: "do an act that harms public order or good morals, or that harms the honor or the peace of daily life of a person concerned." Here, the subject is the person who inspected or copied, the act is the use of the matters learned, and the condition is the case in which a result harmful to honor or to the peace of daily life occurs.
The point at which the basis and the conclusion meet in the above wording is that access and use are placed on different axes of judgment. The confirmation that inspection was lawful speaks only to the allowance at the access stage, and how the matters are used thereafter is a question to be examined separately.
The strongest counterargument aims at the point that restrictions on use may chill critical research. The apprehension that repeated partial restrictions may effectively undermine the principle of openness is of the same tenor. If researchers cease evaluation and verification with respect to the materials they obtained through inspection, the public scrutiny that should be formed through publicly available trial records is chilled, and that loss is borne not only by the persons concerned but by the community. This means that, while acknowledging the inconvenience the counterargument points out, the structure of separately examining the harmful consequences of use itself cannot be abandoned.
In the synthetic scene, there are two facts relevant to this question. Plaintiff A demands production of the entirety of the records on the ground of a public trial, and Defendant B asserts the risk arising from address disclosure. What a public trial opened up is close to a matter of allowance at the access stage, and the risk of address disclosure corresponds to the harm that use may cause. These two are not weighed against each other by the scene alone. Unless the target document or the basis and scope of the restriction decision can be confirmed, that part remains undetermined. However, where the specified change occurs—that is, where the protective purpose shifts from confidentiality to protection against harm to life or body—then, as seen above, the parties may also be included, so the determination must be begun anew outside the existing scope.
The conclusion this section permits is narrow. The mere fact that lawful inspection was confirmed does not mean that all subsequent republication is permitted, and conversely, the mere existence of restrictions on use cannot undo access itself. Use that harms the honor or the peace of daily life of a person concerned remains a separate subject of restriction. In addition, once the specified change is confirmed, the existing blocking or effectiveness judgments are discarded and the determination is redone from the stage itself.
6.6The Strongest Counterargument and the Answer
Restrictions on use may chill critical research. Even if the route by which materials were obtained was lawful, the manner of use may harm people, and this gives rise to the doubt. Its conclusion is that the disclosure of judgments includes unconfirmed cases while simultaneously following statutory exclusions and the protection of personal information. If the preceding stage addressed how the content might be used after the records were read, the present question asks whether the permissibility of that reading can carry through to all republication. The question as framed, then, is this: how may lawfully read records be used? This question does not again ask the scope of disclosure of judgments; it designates the place for the judgment on use after access.
The provision corresponding to this question is Article 162 of the Civil Procedure Act. Of that Article, the scope this section undertakes is only Article 162 (4). That paragraph provides that a person who has inspected or copied litigation records shall not, by using matters learned through such inspection or copy, do an act that harms public order or good morals, or that harms the honor or the peace of daily life of a person concerned. The subject spoken of here is the person who inspected or copied the litigation records, the object is the matters learned through that act, and what is prohibited is an act that harms public order or good morals, or that harms the honor or the peace of daily life of a person concerned. This wording determines what the previously mentioned limits on the use of the records—that is, the restriction on harmful use of matters obtained through inspection—designate.
This wording and the conclusion of this section are connected. The conclusion is that lawful inspection cannot be converted into a blanket authorization for all republication. The provision places the permissibility of access and the prohibition of use side by side. That is, the permissibility of access to the records and the prohibition of use that harms honor or the peace of daily life are separate judgments. Since one does not automatically bring the other along, the two must be distinguished before the earlier question can be answered. The circumstance that the reading took place through lawful procedure only concludes the evaluation at the access stage, and how the matters read are used is asked separately. There is no need to add any new requirement or exception here. The wording has already divided the two stages, and that distinction becomes the standard for this determination.
This distinction touches upon the counterargument that restrictions on use may chill critical research. The counterargument points out that repeated partial restrictions may effectively undermine the principle of openness. Although researchers have come to be able to look into unconfirmed cases through judgments as well, if, in the course of citing or criticizing those materials, they must each time confirm the boundary of harmful use, the concern is that the review itself may be chilled. Also unfavorable to this counterargument is the point that, if the expressions "the honor or the peace of daily life of a person concerned" are read broadly, it becomes difficult for researchers to anticipate what expressions they may use. But the answer is settled. Lawful inspection cannot be converted into a blanket authorization for all republication. While not denying the possibility of chilling that the counterargument points out, it is maintained that such a possibility does not serve as grounds for pushing the prohibition of use out to the permissible scope.
Taking only the facts relevant to this question in the synthetic scene, Plaintiff A demands production of the entirety of the records on the ground of a public trial, and Defendant B asserts the risk arising from address disclosure. The plaintiff's demand is a question of access, and the defendant's assertion is a question of harm arising from use. Since, in the preceding conditions, neither the portion designated for protection nor the scope of the disclosure restriction decision was confirmed, whether the risk arising from address disclosure concerns honor or the peace of daily life, or concerns protection against harm to life or body, is not determined by the scene alone. The contrast—that if it shifts to protection against harm to life or body, the parties may also be included, and therefore it is not handled within the same scope of access as confidentiality—indicates only the boundary of determination when that condition changes, and no actual fact has been added. Accordingly, with this scene alone, the scope and basis of the restricted portion remain undetermined.
The conclusion this section permits is narrow. An act of using, in a harmful manner, matters learned through inspection or copy is prohibited in itself, and that prohibition is judged separately from the permissibility of access. The conclusion this section does not permit is the direction in which lawful inspection immediately becomes a blanket authorization for all republication. Since the scope within which one could read and the manner in which one may use are not the same, if either is read so as to extend to the other, this distinction collapses. Materials with no determined value cannot be filled in.
6.7The Link to the Application and the Dispositive Part
The preceding section reached the conclusion that lawful inspection cannot be converted into a blanket authorization for all republication. What must be examined next is the question of what may be done, and what may not be done, with respect to the records so inspected. That is, it is at issue whether the permissibility of access itself and the permissibility of subsequent use are the same question or matters to be judged separately. Article 162 (4) of the Civil Procedure Act answers this question directly in its wording. The wording declares: "A person who has inspected or copied litigation records shall not, by using matters learned through such inspection or copy, do an act that harms public order or good morals, or that harms the honor or the peace of daily life of a person concerned."
Here, the subject used in the wording is the person who inspected or copied the litigation records. What that subject does is not the inspection or the copying itself, but rather using the matters learned in the course thereof to cause harmful consequences. The prohibited use is limited to use that harms public order or good morals, or that harms the honor or the peace of daily life of a person concerned. Thus, the provision does not examine the lawfulness of inspection and, at the same time, draw in the harmfulness of use to render a single determination. Access is access, and use is use: the wording is woven so that the two gates are passed separately.
This distinction follows naturally from the preceding section. The reason the preceding section nailed down that lawful inspection cannot be converted into a blanket authorization for all republication is that the legitimacy of access does not spread so as to authorize the use that follows. Article 162 (4) of the Civil Procedure Act is precisely the provision that fills that gap. The fact that inspection was permitted did not confer upon the person who obtained the records the freedom of use as well. Conversely, the circumstance that use is prohibited does not negate inspection itself. The limits on the use of the records—that is, the restriction on harmful use of matters obtained through inspection—must be discussed on a stage of judgment separate from the permissibility of inspection.
Of course, there is the counterargument that restrictions on use may chill critical research. If the restrictions are interpreted broadly, those who handle materials may fear that they might unwittingly incur liability and reduce their investigations. The worry that repeated partial restrictions may effectively undermine the principle of openness arises in the same direction. Such losses and inconveniences cannot be eliminated. But that does not mean lawful inspection can be converted into a blanket authorization for all republication. While maintaining the structure of asking the harmfulness of use separately, it must also be considered that the prohibited acts are tied to acts that harm public order, good morals, honor, or the peace of daily life, so that the restrictions on use do not become excessively broad.
This scene shows the shape of the contentions surrounding the scope of access. Whether the risk of address disclosure that Defendant B fears is realized by the inspection itself, or whether the inspector goes on to use that address to commit an act that harms the honor or the peace of daily life of a person concerned, is a separate question. This question belongs to the latter. Yet the scene contains only the contentions of the plaintiff or the defendant, and does not state what scope of access and what restrictions on use the court recognized. Therefore, whether the actual use falls within the prohibited objects cannot be determined from this scene alone and remains undetermined. Meanwhile, the change in condition—that if the protective purpose shifts to protection against harm to life or body, the parties may also be included, and therefore it is not handled within the same scope of access as confidentiality—belongs to a separate discussion of access restrictions, and is not mixed with the present determination of the limits on use.
In sum, if an act of using matters lawfully learned through inspection does not harm public order or good morals and does not harm the honor or the peace of daily life of a person concerned, that use is not separately prohibited either. However, the fact of lawful inspection alone must not be interpreted to mean that any republication and any use are acceptable. The limits on the use of the records mean a restriction on harmful use of matters obtained through inspection, and the legitimacy of access and the unlawfulness of use are asked separately.
6.8The Scope This Section Undertakes
On the premise that the disclosure of judgments includes unconfirmed cases while simultaneously following statutory exclusions and the protection of personal information, the question now posed is how the materials may be used after they have come into one's hands. In this scene, access and use must be judged separately.
"A person who has inspected or copied litigation records shall not, by using matters learned through such inspection or copy, do an act that harms public order or good morals, or that harms the honor or the peace of daily life of a person concerned." This wording limits the subject to the person who inspected or copied litigation records, and the act to the use of matters learned through inspection or copy. The condition is the case in which that use harms public order or good morals, or harms the honor or the peace of daily life of a person concerned. Whether access itself is lawful is not an object of determination under this paragraph.
Grounded in this wording, the permissibility of access to the records and the prohibition of use that harms honor or the peace of daily life are separate judgments. The former asks whether the target document is present and the access requirements are met; the latter asks in what manner the matters so obtained were used. Having passed the preceding stage does not automatically permit the following stage either, and having committed a prohibited act at the following stage does not mean that the access at the preceding stage was unlawful from the outset.
The point that most strongly objects to this distinction is that restrictions on use may chill critical research. If, after obtaining materials, it is unclear what expressions harm honor, researchers may not dare even to cite publicly available records, and the principle of openness may remain one of de facto silence. The inconvenience is also great that, if partial restrictions are repeated, disclosure itself eventually becomes an empty shell, losing even its role of monitoring the opposing party or the parties. What is prohibited is not access, but the harmful use of matters obtained through inspection.
Comparing this scene with the preceding conditions, Plaintiff A's demand concerns the production of the entirety of the records, and Defendant B's concern concerns the risk arising from address disclosure. The fact that the judgment has been disclosed did not thereby satisfy the access requirements for litigation records, and conversely, the fact that access was permitted does not mean that it is all right to use those matters harmfully afterwards. Unless what the target document is, what disclosure restriction decisions or portions designated for protection exist, and what kind of judgment it is are confirmed, it cannot be determined which portions must be produced.
In sum, the conclusion this section permits is narrow. Even with lawfully read records, one shall not do an act of using those matters to harm the honor or the peace of daily life of a person concerned, and this prohibition is judged separately from the permissibility of access. The conclusions this section does not permit are equally clear. The interpretation that, merely because inspection was lawful, any republication and use is free, and the interpretation that, merely because access was restricted, restrictions on use have already been established, do not stand on this distinction.
6.9Application of the Text of the Provisions and the Holdings of Precedents
Plaintiff A, who demands the provision of the entire records on the ground of a public trial, and Defendant B, who asserts the risk arising from the exposure of an address, lay arguments of different dimensions on top of one another. Only when these two are separated does it become clear how the records lawfully read are to be used.
Among the wording prescribed in Article 162 of the Civil Procedure Act, paragraph (4) reads as follows: “(4) A person who has inspected or copied litigation records shall not, by using matters learned through such inspection or copying, commit an act that harms public order or good morals, or that harms the honor or the peace of life of an interested person.” The subject this wording designates is a person who has inspected or copied litigation records, and the conduct it regulates is the act of that person's using matters learned through such inspection or copying to harm public order or good morals, or the honor or the peace of life of an interested person. The conditions expressly stated by statute reach exactly this far.
This wording requires the lawfulness of access and the propriety of use to be judged at different stages. If the former is the question whether the inspection and copying themselves are permitted, the latter is the question how the matters already learned are to be used. Lawful inspection does not thereby approve every form of use as well, and so the moment the two judgments are combined into one, the distinction established by the wording disappears. The ground of judgment used in this section is nothing but the wording within the scope of the relevant text; it is not extended to the reasons for judgment or to other paragraphs.
The counterargument that such restrictions on use may chill critical scholarship aims at practical loss. Set beside it is the worry that repeated partial restrictions may in effect destroy the principle of openness itself. The inconvenience the counterargument points out does not disappear, but for that reason lawful inspection cannot be turned into a blanket permission for all republication. The distinction drawn by the wording—that the permissibility of access and the prohibition of harmful use are separate judgments—holds that boundary.
In the synthetic scene, Plaintiff A demands the provision of the entire records on the basis of a public trial, and Defendant B asserts the risk arising from the exposure of an address. Under the foregoing conditions, a public trial and the provision of the entire records are not requests of the same dimension, and the concern over the exposure of an address touches upon the peace of life of an interested person. However, since there is no material showing how the application for inspection, the DECISION on eligibility and disclosure restrictions, the portions designated for protection, and the type of judgment were each determined, whether access to the designated portions is in fact restricted cannot be established from this scene alone.
The conclusion this section permits is that the wording of Article 162 of the Civil Procedure Act requires lawful access and harmful use to be judged separately. Conversely, that wording alone cannot decide the question whether the entire records are to be provided, or questions under other conditions. Unconfirmed facts remain undetermined.
6.10Fine Distinctions Within the Stage
Accepting the conclusion of the preceding section—that the permissibility of access to the records and the prohibition of use that harms honor or the peace of life are separate judgments—this section now asks what the limits of use mean. It is a place where, with respect to the same material, whether it may be read and how it may be used arise together as questions.
The wording that forms the basis of that distinction is found in Article 162 of the Civil Procedure Act. Its paragraph (4) provides: “A person who has inspected or copied litigation records shall not, by using matters learned through such inspection or copying, commit an act that harms public order or good morals, or that harms the honor or the peace of life of an interested person.” (Article 162 of the Civil Procedure Act) Here the subject is a person who has inspected or copied litigation records, and the act is the use of matters learned through such inspection or copying.
What this wording prohibits is an act that uses those matters to harm public order or good morals, or to harm the honor or the peace of life of an interested person. Since the use subject to prohibition is limited to use aimed at such harmful results, the lawfulness of the inspection itself remains a separate judgment. Even one who has lawfully inspected falls afoul of this prohibition if he uses the matters thereby learned in a harmful manner. Conversely, the existence of that prohibition does not negate the permissibility of inspection either.
Drawing the distinction in this way gives rise to the worry that critical scholarship may be chilled. An apprehension is also raised that repeated partial restrictions may in effect destroy the principle of openness. Yet lawful inspection cannot be turned into a blanket permission for every republication. How one handles material obtained through inspection is a different question from whether one could obtain that material, so even accepting the foregoing worry, the judgment known as the limits of use cannot be erased.
In this scene, where Plaintiff A demands the provision of the entire records on the ground of a public trial and Defendant B asserts the risk arising from the exposure of an address, what is at issue is how the matters containing the address are to be used. If the exposure of the address may harm the peace of life of an interested person, the act of using those matters falls on the side prohibited by the foregoing wording. However, since from this scene alone it cannot be established whether inspection of a particular portion is permitted or restricted, that judgment remains undetermined.
Accordingly, in this judgment the limits on the use of the records mean a restriction on the harmful use of matters obtained through inspection; this does not mean that records lawfully read may be used in any manner whatever. The permissibility of access and the prohibition of use are each judged under different requirements, so the conclusion on one cannot be carried over to the other as it stands. How are the operation and blocking of statutory disclosure and inspection and of protective measures, and the undetermined state, to be distinguished?
6.11Synthesis of Effectiveness, Blockage, and Undetermination
If the preceding section took the harmful use of matters obtained through inspection as the object of restriction, the question now is how that restriction actually operates and where it stops. In this scene, how may the records lawfully read be used?
Article 162 of the Civil Procedure Act takes as its subject a person who has inspected or copied litigation records and regulates the act of using matters he has learned through inspection or copying. While setting acts of use as the object of prohibition, this provision limits the scope of that prohibition to cases where public order or good morals are harmed, or where the honor or the peace of life of an interested person is harmed (Article 162 of the Civil Procedure Act). An interested person means a person connected with the case, and honor and the peace of life mean that person's social reputation and the stability of daily life. This wording contains no rule permitting or restricting access itself.
Because this provision deals only with the prohibition of use, the permissibility of access and the restriction of use remain separate judgments. Different access requirements attach respectively to hearings, written judgments, and litigation records; if one accesses within the scope beyond statutory restrictions having met those requirements, that access operates. Conversely, if protection of the relevant secrecy or against harm, or a statutory ground for exclusion, is recognized and access to the designated portions is restricted, those portions are blocked. The reason for dividing these two stages is that even when the route by which material was obtained is lawful, the manner of using it may harm people, and that if obtaining and using are bound together into one judgment, neither can be assessed accurately.
The counterargument that restrictions on use may chill critical scholarship aims at this distinction. The unease that repeated restrictions may in effect destroy the principle of openness is attached here as well. The provision regulating the use of matters obtained through inspection is not a provision exempting the duty of disclosure, and the single fact that access was permitted does not justify use that harms the honor or the peace of life of an interested person. The inconvenience to research that the counterargument points out remains, but that inconvenience cannot erase the distinction between access and use itself.
The fact of a public trial concerns whether the hearings were open, whereas the provision of the entire records concerns the scope of inspection of litigation records; accordingly the two are not the same judgment. The defendant's assertion points to a situation in which designated portions that may harm the peace of life of an interested person can be bound by protective measures, but from the scene alone it is not determined to which part of which document that risk attaches. Therefore, unless the type of judgment, the portions designated for protection, and the scope of the DECISION restricting disclosure are confirmed, the fate of those portions remains undetermined.
The conclusion this section permits is narrow. If one accesses, having met the different access requirements for hearings, written judgments, and litigation records, within the scope beyond statutory restrictions, that access operates; if protection of the relevant secrecy or against harm, or a statutory ground for exclusion, is recognized and access to the designated portions is restricted, those portions are blocked; and if the subject document or the grounds and scope of the restriction DECISION cannot be confirmed, the matter remains undetermined. That this distinction does not turn lawful inspection into permission for all republication is the boundary of this section; judgments beyond that this section does not undertake.
6.12이 권의 결론과 남는 물음
What remains is in what manner a person who has lawfully read the same records may use the matters within them, and how far this judgment can be carried. It must first be made clear whether, in this scene, the demand for provision and the restriction on use are automatically bound together as one.
The wording that prescribes that distinction is found in Article 162 of the Civil Procedure Act. The phrase confirmed there provides: “A person who has inspected or copied litigation records shall not use matters learned through such inspection or copying to commit an act that harms public order or good morals, or that harms the honor or the peace of life of an interested person” (Article 162 of the Civil Procedure Act, Article 162(4)). The subject this wording deals with is a person who has inspected or copied litigation records, and the conduct it regulates is the use of matters learned through that inspection or copying. The prohibited use is limited to acts that harm public order or good morals, or that harm the honor or the peace of life of an interested person.
The conclusion established on the basis of this wording is plain. The fact that access to litigation records was permitted, and the question whether the use of matters obtained through that access in a particular manner is prohibited, are separate judgments. The former concerns whether the requirements for inspection and copying have been met; the latter concerns whether the use of the matters learned harms honor or the peace of life and the like. To merge the two judgments into a single mass and thereby reverse access itself, or to read permission of access as immediately implying unlimited use, is to erase this distinction.
To be sure, the counterargument that restrictions on use may chill critical scholarship remains the strongest. It is the worry that if the manner of use is restricted in advance even though the route by which the material was obtained is lawful, work that verifies power or points out wrongdoing on the basis of court records can hardly survive. There even arises the apprehension that repeated partial restrictions may in effect destroy the principle of openness. Even in a case in which there were an open judgment and open hearings, using the matters obtained from those records in a manner that harms the honor or the peace of life of an interested person is separately blocked by this provision. However great the need for research, that prohibition does not lapse.
The fact that there were open hearings serves only as material bearing on whether access to the records is permitted; it does not justify using matters obtained through inspection, such as addresses, in a manner that harms the peace of life. However, from this scene alone it cannot be established what decision the plaintiff's demand for provision actually led to, or to which designated portion the risk asserted by the defendant relates. Nor do the records left by the application for inspection, the decision on eligibility and disclosure restrictions, the portions designated for protection, and the type of judgment add any fact beyond these two sentences. Accordingly, what is confirmed is only the judgment that access and use are distinguished, and the content of the concrete disposition remains undetermined.
The conclusion this section permits is that the permissibility of access to the records and the prohibition of use that harms honor or the peace of life are separate judgments. Whether the access requirements have been met, and how those matters are to be used, are examined by different standards. What this section does not permit is either to call lawful inspection itself into wholesale question, or to read the lawfulness of inspection as meaning that any republication or reuse is acceptable. The worry that restrictions may make research difficult also remains as it stands, but that worry cannot serve as grounds for merging the two judgments into one. Is a judge excluded on the basis of an unfavorable impression alone?
Statutes referred to
Questions left open
- How should materials that are re-identified even after de-identification be handled?
- What effect does delay in disclosure have on the monitoring of trials?
- How far should the scope of access differ between litigation participants and ordinary researchers?