민사소송 및 집행 절차에서의 개인정보 보호에 관한 연구 = Study on the Protection of Personal Information in Civil Litigation and Execution Procedures

다국어 초록 (Multilingual Abstract)

As social sensitivity to privacy protection increases, social interest in matters where personal information may be exposed or leaked through the courts in litigation and execution procedures is also increasing. Accordingly, there is a growing demand for the role of courts in protecting personal information. This study, within the scope of litigation and execution in the ordinary civil cases, aims to identify the routes through which personal information could be exposed or leaked, and further suggest the range of the parties’ personal information to be required in documents when preparing civil proceedings and execution procedures. The following three points were examined with a view to exploring and suggesting some avenues on how to limit the scope of the personal information required in civil litigation and execution procedures and thus how to redesign the scope of responsibilities for personal information protection between the parties, the stakeholders, and the courts respectively.
First, we have examined the range of the personal information and the right to informational self-determination, then have identified the personal information required in civil litigation and execution procedures under the relevant rules. The provisions in the enacted law level, such as those in Civil Procedure Act or Civil Execution Act, basically require the litigants’ addresses or do not specifically prescribe the necessary information in detail for civil litigation and execution procedures. Whereas, some of the provisions in the lower regulation level or civil procedural standard forms in practice require litigants’ social security numbers in addition to their address information.
Second, we have made a preliminary research on the handling of personal information in the courts’ practices. While litigants more often than not know each other’s personal information, in exceptional cases, such as in a case where a crime victim filed a suit for damages against the offender, litigants would not want his/her address known to the other party, consequently having privacy issues arise. In these exceptional cases, a number of problems would likely arise with regard to not only the documents prepared by litigants, such as complaints or court-deposit application documents, but also the documents provided by courts and delivered to litigants, such as judgments, decisions, and orders. It was also found that personal information of the parties, such as addresses or social security numbers, might be exposed to all other parties in the multi-party litigation, or be leaked while court auction records or deposit documents are inspected and copied by stakeholders.
Third, we have compared and reviewed the privacy protection systems in other countries’ civil litigation and execution procedures in a comparative perspective. The personal information commonly required in civil litigation and execution procedures in the countries under review are litigants’ names and addresses. As regards the handling of personal information in courts, each country has specific characteristics showing some differences and disparities among each other. The system in the United States appears to be distinctive, as compared to those in civil law countries in Europe that commonly apply the EU General Data Protection Regulation (GDPR), actively considering the role and responsibilities of the courts on a relatively consistent legal basis.
The courts in the United States tend to minimize the range of personal information collected by courts in the civil proceedings to the name and address of litigants, leaving the responsibility of collecting additional information on the litigants or the execution authority. Especially the creditors have widely recognized right to collect debtor’s information. The responsibility to redact filings also rests on the litigants.
Austria and France have specific institutional procedures for non-disclosure of personal identification information, such as litigants’ addresses. Austria requires that personal information be submitted in a separate document to protect victims’ information in civil proceedings. In Germany, the academics suggested the possible introduction of procedure for non-disclosure of victim’s address already adopted in Austria, but it has yet to have institutionalized such system. In France, a procedure for non-disclosure of address is available for victims’ filing a complaint with constitution of civil party(la plainte avec constitution de partie civile), allowing him/her to submit an address of a third-party under the third-party’s explicit consent.
In the case of Japan, certain information regarding the parties, such as confidential business information or the facts as to the sexual offenses, are protected in the process of inspecting or copying the court records. Efforts are also made to protect personal information in the civil execution procedure: Upon request from a person concerned who had been questioned by an execution officer during the compulsory auction procedure against the immovables, his/her name can be processed in anonymity in the investigation report on the current status of the auction objects. In such auction records that are electronically accessible, pseudonyms are used for the names of debtor, owner, tenant, etc.
On the basis of the above findings, this study suggests the range of the parties’ personal information required in documents to be prepared and provided during civil litigation and execution procedures, and the ways to improve the handling of personal information in such procedures as follows: Given the benefit of a party by having the information as to the address of the other party, it is reasonable to state the full address of litigants in the complaints, judgments, etc. And considering the fact that the social security number uniquely identifies a person and damages incurred therefrom would be hard to recover when it is exposed or leaked to other people, it is appropriate not to have social security numbers of litigants recorded at least in the documents provided by courts.
The main point of improving the handling of personal information recorded in the documents prepared by litigants is to adopt following systems in the civil litigation and execution procedures: a party statement document, filings made under seal, and procedures for non-disclosure of litigants’ addresses. The party statement document shall be prepared and submitted separately from the grounds for the claim by every filer in the ordinary civil cases. Party statements contain the name, address, and social security number of the parties and are being submitted at the stage of filing a lawsuit or applying for an order(e.g. an order for payment). A filer, who has redacted personal information from the complaint and has submitted a party statement, can also submit some of the documents under seal without redaction, when it is necessary in the procedure. A party, who wishes to have his/her residential address unknown to the other party in civil litigation and execution procedure and who has a legitimate interest in doing so, may seek the court’s permission in order to keep his/her address information confidential. If the judge grants permission to prohibit dis closure of address, the party may keep the information confidential not only in civil litigation procedure but also in civil execution and court deposit procedures.
The essence of how to improve the handling of personal information recorded in the documents prepared by the court is to introduce the party information confirmation process. It is a process that provides a separate document that shows social security numbers of the litigants upon the request of those who need the information for the execution procedure.
Provided that we do not choose to adopt the party information confirmation process, the alternative solution is to have some of the personal information written in the original document be removed from its certified copy, which is to be sent to the defendant. This method may raise the issue of validity of the original copy. The Certified e-Document Authority and the Austrian concept of ‘abridged copy’(gekürzte Ausfertigung) might help solve the problem. The Certified e-Document Authority is a third party designated to hold or certify electronic documents for others or to perform related tasks. It is conceivable to have them in charge of certifying registration, delivery, content, and originality of the documents issued by courts. In addition, a new concept of original copy that considers electronic documents needs to be introduced. The concept of abridged copy allows to acknowledge a copy that omits some of the personal information written in the original document as an original document, assuming that substantial contents of the two are identical.
This study has limited the research on the protection of address and social security number of parties in civil litigation and execution procedures. It is hoped that our discussions of protecting personal information be continued in other types of litigation that focuses on a broader spectrum of personal information, leading to a more complete and systematic improvement of privacy protection in trial proceedings.