민사소송상 통신사실확인자료의 제출에 관한 소고 - 대법원 2023. 7. 17. 자 2018스34 전원합의체 결정을 중심으로 -

The Supreme Court has made a negative decision on whether a telecommunications business entity can refuse to submit communication confirmation data in response to a court’s order to produce documents citing the Protection of Communication Secrets Act. There is no doubt about the necessity of addressing the structural imbalance in evidence and the practical difficulties in evidence collection, as well as the need to enhance the feasibility of fair trials through efficient evidence collection. Furthermore, the proactive use of order to produce documents is widely recognized as a key mechanism for achieving these goals, and its direction and intent are broadly supported. However, considering that the Protection of Communication Secrets Act specifies the submission method for communication confirmation data as an entrustment of examination and that there are numerous dissenting opinions in the case reflecting this, there is room for a different legal interpretation from a formal perspective. Accordingly, this paper briefly summarizes the key aspects and opinions of the case law, clarifies the concept of communication confirmation data, its legal basis for submission, and the realities of its collection, and examines the submission of communication confirmation data in the civil procedure based on these considerations. Given the formal relationship of ‘principle and exception’ and ‘exception to the exception’ under the Civil Procedure Act and the Protection of Communication Secrets Act, as well as the fact that the Protection of Communication Secrets Act specifies the submission method for communication confirmation data as an entrustment of examination, it is formally reasonable to interpret, as argued by the dissenting opinions in the case, that the submission method for communication confirmation data is limited to an entrustment of examination. However, the entrustment of examination for communication confirmation data has several clear limitations, which not only significantly restrict evidence collection for a fair trial but also limit the protection of communication secrets in an appropriate manner. In comparison, while the order to produce documents also has certain limitations, it is relatively more suitable for collecting communication confirmation data and is considered more effective in evidence collection. Thus, while the legally compliant submission method is formally the entrustment of examination, the relatively more effective submission method is the order to produce documents. Prioritizing formal validity may ignore the reality of a dysfunctional system. When considering the relative suitability and effectiveness of order to produce documents for collecting communication confirmation data, as well as the necessity for active enforcement measures against non-compliance with such orders, the majority opinion in the case that recognizes order to produce documents for communication confirmation data can be deemed valid in substantive and practical terms. However, even acknowledging the validity of the majority opinion in the short term, it remains imperative to pursue legislative improvements for long-term formal consistency. This would address practical issues while ensuring clarity and predictability in the legal system.