「국가사이버안보법안」의 행정법적 고찰

김재광 경북대학교 IT와 법연구소 2019 IT와 법 연구 Vol.0 No.19

이 글은 비정형적이고 무차별적으로 자행되는 사이버공격이라는 “도전”에 대한 행정조직법적 및 행정작용법적 “응전”을 「국가사이버안보법안」의 내용을 중심으로 하여 법제도적으로 살펴본 것이다. 사이버안보는 국가와 국민의 안전보장, 기본권 보장, 법치주의, 국제평화주의의 헌법적 가치 속에 농축되어 있어 이를 구체화하는 것이며 헌법수호를 위한 국가안보의 현대적 대응이다. 관계기관들이 수행하는 사이버안보 활동은 일종의 행정행위이며 이에 관한 법령은 행정법적 성격이 있다. 청와대 국가안보실이 발간한 「국가사이버안보전략」은 행정부 차원의 사이버안보에 대한 인식의 구체화를 표상한다는 점에서 의미가 크다. 그러나 이를 뒷받침하는 법제도를 위한 입법은 미흡한 점이 있음을 부인할 수 없다. 오늘날 사이버안보에 관한 행정작용을 충분히 규율하는 행정작용법이 필요하며, 그러한 행정작용법과 조화되는 행정조직법도 요구되는 것이다. 이에 따라 「국가사이버안보법안」의 내용을 중심으로 하여 사이버안보 입법과 관련하여 제기될 수 있는 행정조직법적 및 행정작용법적 쟁점들을 검토하였다. 행정조직법적 측면에서는 향후 입법시 요청되는 콘트롤타워, 부처 간 협력 및 민관 간 협력이라는 사이버안보 행정조직체계의 정립과 관련한 생각들을 제시하였다. 그리고 행정작용법적 측면에서는 행정작용의 대상 및 보호법익으로서 사이버안보, 사이버안보와 행정입법, 사이버안보와 행정계획, 사이버안보와 판단여지, 사이버안보와 행정조사, 사이버안보와 개인정보보호 등에 관하여 살펴보았다.

EU 단일특허와 특허법조약(PLT) 가입확대 등에 따른 글로벌 특허시스템 논의와 한국 특허법에 미치는 영향

배대헌 경북대학교 IT와 법연구소 2015 IT와 법 연구 Vol.0 No.11

A recent discussion and relating efforts with regard to patent laws in EU, USA, and WIPO are focused on establishing new regulations of their own Patent Law in order to reduce the time and cost on patent application and its examination. They are also interested on minimizing their patent litigation cost against infringement. In light of a global patent reformation, this simply means that an applicant is granted a right to patent with a little expenditure. Moreover, an adaptation to Patent Law Treaty(PLT) shows that each country tries to harmonize the procedural steps to patent prosecution. This article examines the impact of global patent system such as EU Unitary Patent, PLT Implementation in USA, and their discussion on the Patent Law Harmonization of World Intellectual Property Organization upon the Korean Patent Act. In addition, it also focuses on seeking the patent policy and the legal framework for Korean Patent Progress. This article is composed of six chapters; after the first chapter refers on the problem approach in this article, the second chapter on the patent policy and its regulation from EU Unitary Patent and Unified Patent Court. Third chapter referring the recent Patent Act reformation and the PLT implementation in USA, and the fourth chapter examines the existing Korean Patent Act which has adopted and revised according to some provisions of PLT, even though Korea is not a member country of it. And the fifth chapter looks the impact upon the existing Patent Act with the eyes of global patent system and its relating patent policy, finally it gives a conclusive opinion to the progressive direction of existing Patent Act.

블록체인 기술의 사회에서의 보편적 활용을 위한 규범성 고찰

송영현 경북대학교 IT와 법연구소 2021 IT와 법 연구 Vol.0 No.22

This study handles the legal issues in relation to social changes brought by blockchain technology connected to artificial intelligence. Concretely, this study aimed to seek the possibility to secure the normativity implying legal meanings as a countermeasure for giving social legitimacy to various digital acts based on blockchain technology that could be the advanced scientific technology of modern times. Thus, this study also mentions the value and characteristics of legal norms according to legal acts applied with blockchain technology. As one of the core powers in the 4th industrial revolution era, the blockchain technology is widely-known as technology that would change the industrial structure. The blockchain technology that could be used for financial area such as payment/settlement or stock exchange, electronic notarization, smart contract, establishment of transaction network, easy login program, and government use could become a core digital service that could accelerate new lifestyles. Nevertheless, this is still a controversial issue. As an example, there is a problem of cryptocurrency like Bitcoin. Bitcoin is digital cryptocurrency based on blockchain technology. The recognition as currency that could be used as a payment method in social transaction was good enough to raise social interest in Bitcoin. Even though Bitcoin was expected to show equal use equipped with universality, in reality, there are some problems like concentrated possession or intervention of speculative elements. For this reason, the problems like regulation or control of cryptocurrency are raised by highlighting the stability of trading system. However, the blockchain technology has the high applicability to sharing economy, public sector, and market as it could greatly reduce complex transaction process and cost, so many people argue the necessity to find the measures for absorbing it into social system somehow. The blockchain technology is neither settled, nor stable as it is under development yet. And it could also have side effects like technical aggression such as cyber hacking or privacy violation, which makes people demand for giving the legal character to this series of processes. In other words, to establish and settle down the blockchain-based identity authentication or universality as a service model, it would be preferentially required to secure not only the technical stability, but also the normativity as a scale. Meanwhile, in the present time point moving toward the hyper-connectivity and hyper-intelligence era, it is quite difficult to predict the future environment as it is interlinked with concentration of wealth and digital information gap, which should be also considered in relation to this problem. For this reason, some people remind of its adverse effect and feel afraid of life changes that could be brought by the development of scientific technology. And the safety system to get rid of such uncertainty and fear is legal norms. In order for blockchain technology with infinite potential to be used while its security and transparency are guaranteed and all sorts of social risks are removed, it would be needed to perform policy-level reviews and also to enact a suitable law in time. For legal assessment, there should be legal facts. In extended society, the legal acts based on blockchain technology are the existing reality and phenomenon. Giving the normativity to it should be more carefully approached as our laws guarantee the development of scientific technologies.

가상 인플루언서의 등장과 그 규제에 대하여 -미국에서의 논의와 시사점을 중심으로-

김경우 경북대학교 IT와 법연구소 2022 IT와 법 연구 Vol.- No.24

This paper intends to examine the legal issues related to virtual influencers in terms of consumer protection. To this purpose, I will examine the concept and current status of virtual influencers in US, and provide implications and suggestions for virtual influencers In the case of influencer marketing, it is important to disclose whether you have material connections in order to avoid deceptive advertising. The question is whether such disclosure obligations can be extended to virtual influencers. The FTC's ‘Guides Concerning the Use of Endorsement and Testimonials in Advertising (Endorsement Guides)’ does not yet have regulations on virtual influencers. Although this guides is not binding, it provides a basis for advertisers and endorsers to voluntarily comply with the law. There is little discussion about how to regulate virtual influencers if they do not disclose their material connections when they receive economic benefits. Because existing norms assume that influencers are humans, it is important to know whether virtual influencers should be treated the same as humans, or whether only the creators who made virtual influencers can be held accountable. In addition, it is also very important whether to disclose in advance the identity of virtual influencers. Perhaps the most controversial issue with virtual influencers is to seek an answer to the question of “Are virtual influencers inherently deceptive?” Anyone should easily identify that virtual influencers are not real persons. If consumers know that it is a post created by virtual influencers and purchase it, and recognize that virtual influencers are posting it without honest opinions or real experiences, it will be easy to say that the post is not an unfair advertisement. However, even you catch the identity of the virtual influencer, it is difficult to immediately recognize that it does not have the ability to ensorse. The fact that virtual influencers do not have the ability to ensorse should also be disclosed.

중국의 개인정보보호 법제 구축에 대한 소고 -중화인민공화국 개인정보보호법(초안)을 중심으로-

배덕현 경북대학교 IT와 법연구소 2021 IT와 법 연구 Vol.0 No.22

중국은 2020년 10월 21일 「개인정보보호법」 초안을 공개하고 본격적인 제정작업에 박차를 가하고 있다. 중국의 일반적인 법제정 관행과 정치일정을 고려해 보았을 때 동 법률안은 2021년 3월 개최가 예정된 전국인민대표대회에서 통과될 것이 유력시되고 있다. 총 8개장으로 구성되어 있는 「초안」은 개인정보처리의 원칙, 정보주체의 권리와 개인정보처리자의 의무, 민감정보의 처리, 개인정보의 역외이전 및 법적효과 등의 내용을 담고 있는데, 전체적으로 유럽연합의 「일반 개인정보보호법(GDPR)」의 영향을 상당히 많이 받은 것으로 평가되고 있다. 이러한 점을 고려해보면 상기 법률안은 중국에서의 개인정보보호에 상당부분 기여할 수 있을 것으로 판단되나, 여전히 몇 가지 부분에서 아쉬움이 남아있다. 첫째는 정보주체의 권리와 개인정보처리자의 의무와 관련된 규정들이 너무 원론적이고 모호하게 규정되어 있어, 개인정보보호에 있어 실질적인 기능을 다 하지 못할 수도 있다는 우려가 있다. 두 번째는 국가가 개인정보처리자인 경우 정보주체의 권익을 보호할 수 있는 장치들이 제대로 작동하기 어려운 상황이라는 점이다. 세 번째는 특정한 목적과 충분한 필요성이 인정되는 경우에는 민감정보 처리를 원칙적으로 허용하고 있는데, 이는 개인정보보호 차원에서 적절하지 못한 규정으로 생각된다. 최종안에서는 이러한 부분들이 개선될 수 있기를 기대해본다.

온라인 중개 플랫폼 이용계약에서 공정거래질서 확립에 관한 연구 -디지털콘텐츠 중개 표준계약서의 개정방안을 중심으로-

고형석 경북대학교 IT와 법연구소 2022 IT와 법 연구 Vol.- No.24

The digital content industry is a high value-added industry and a basic industry for all industries. Therefore, continuous support is needed for the continuous growth and development of the digital content industry, but it is more necessary to create a foundation for self-growth and development in the market. Therefore, it is essential to establish a fair trade order in order to establish a virtuous cycle of fair profit allocation, investment, and development of high-quality digital content. One of the measures is to create a fair contract culture, and the government has prepared and distributed various standard contracts. It must faithfully reflect the environment of market change and the contents of the enacted and amended laws in order for such a standard contract to play its original role or function. The Ministry of Science and ICT enacted a standard contract for digital content in 2014 and revised it in 2015 to establish a fair trade order in the digital content industry. About six years have passed since then, and many changes have been made in the industrial environment and related legislation. Therefore, amendment is necessary for the standard contract to play its role as a contract suitable for the transaction situation. To this end, a plan to amend the brokerage standard contract was proposed based on the contents of the recently amended laws. These amendments are centered on the contents of the current laws and regulations, and the government and the National Assembly are currently pushing for various legislation or revisions to establish a fair trade order in the online platform market, including the app market. This means a rapid change in the online platform market, and it means that standard contracts should also be amended periodically to reflect the changed environment and laws, not just once. Therefore, it is expected that the standard contract will fulfill its role as a basis for the continuous growth and development of the digital content industry, and it is emphasized again that periodic and timely revisions are necessary to faithfully perform its role.

빅데이터 분야 규제와 개선방안 검토- 신정부의 정책방향과 입법과제 중심으로 -

김진영 경북대학교 IT와 법연구소 2017 IT와 법 연구 Vol.0 No.15

Excessive regulations on big data, which can only use personal information, are likely to hinder IT new industries. In the era of the Third Industrial Revolution, the policy participation of the government was effective because the technology development and change speed was not fast. However, since the fourth industrial revolution era accelerated the technological development and change. Therefore, regulations on the use of big data need to be redesigned for the purpose of protecting personal information and revitalizing new IT industry. Big data-related laws for the protection of personal information acts as a wide range of regulations, It should be reformed in a way that can promote appropriate harmonization of protection and utilization, especially safe use. It has been discussing the base and activation of the Big Data Industry for about 10 years from Lee Myung-bak government to Park Geun-hye government, but it has not been able to create substantial added value due to various political upsets. However, it recognizes the importance of Big Data and has laid the basis for business and utilization at the government. In the future, Moon Jae-In government will appear to put emphasis on utilizing big data and creating value for IT industry and should try to defend the main value of personal information protection. This paper reviews major regulatory issues and improvements related to the big data industry such as personal information and intelligent mobility, network separation, health care, and public data expansion. Since the current legislation focuses on the protection of personal information, it is necessary to enact a "big data law" to utilize personal information in accordance with modern values. The intelligent mobility such as autonomous mobility is based on big data, and location information, so in this regard, it should be changed to the post refusal method. Also the simple archival information that takes non-identifying actions makes exceptional use of the cloud system. Health care is also an important area of Big Data. A wide range of health information plays an important role in the implementation of various public policies. Laws are required because there is no legal basis for the use of current health data. Finally, Legal basis for the use of public and private data is also required.

법 분야 위험의 예측을 위한 인공지능 알고리즘과 관련된 법적 쟁점

양종모 경북대학교 IT와 법연구소 2021 IT와 법 연구 Vol.0 No.22

In this paper, I will focus on tools for predicting risk in the public domain, including predicting the risk of recidivism. In Korea, the introduction or use of such algorithms has not yet been in full swing, but prior to full-scale introduction, it is necessary to preemptively examine various problems of risk prediction by artificial intelligence algorithms. Artificial intelligence algorithms used in the private sector's legal services do not replace the decision-making of legal experts such as lawyers, but rather assist lawyers and enhance the capabilities of lawyers. It is not properly addressed in this paper because it’s legal issue is small, and focuses on the algorithm for predicting the risk of recidivism and the predictive security algorithm, which are mainly used in criminal proceedings. The tool to measure the likelihood of a criminal violating the law again, that is, the risk of recidivism, was first used in the 1930s to determine the prisoners to be released on parole, and is gradually being used to determine the sentence at the time of sentencing. This tool is a type of regression analysis model that uses race, ethnicity, education, and intelligence as predictors. With the recent rise of machine learning algorithms, new risk assessment tools that apply machine learning algorithms on top of the basic principles of existing recidivism risk measurement tools have been developed one after another. What is common in these risk assessment tools is to take as input variables several factors that are thought to have an influence on recidivism, and use the complex computational power of machine learning algorithms to calculate recidivism's risk score. All of the recent risk prediction tools use artificial intelligence algorithms, and among them, machine learning algorithms are frequently used. As the name suggests, machine learning learns using enormous amounts of data and performs tasks assigned with improved performance. The learning function operates even in the user's use process, and when machine learning algorithms are used, the performance gradually improves. However, as the prediction results are biased and differentiating problems arise, they are surrounded by harsh criticism. A widely used predictive security algorithm along with the recidivism risk assessment tool predicts when and where a crime will occur using crime data and machine learning. The predictive policing algorithm, called the crime prediction algorithm, is based on the idea that analyzing existing data on past crimes can predict when and where new crimes are most likely to occur. Based on the fact that certain types of crime tend to cluster in time and space, we predict where the crime will occur in the future based on the criminal record maintained by the police and the recent crime area. This algorithm has long been used for the deployment of police patrol personnel in more than 60 cities in the United States, including Atlanta and Los Angeles, and is evaluated as contributing greatly to lowering the crime rate. However, due to the manipulation of criminal statistics, there are my flaws in the data used in the machine learning algorithm, and the risk of crime in the region where the past crime occurred is overestimated due to the prejudice inherent in the data. The prejudice inherent in the data is not only a problem of accuracy, but also a problem of racial discrimination. In order to solve this problem, it is necessary to acknowledge the error of the algorithm and find a way to solve it. In addition, it is necessary to recognize the importance of the integrity of the data used in the algorithm, and make considerable effort to collect and clean the data. In addition, as it is mainly used in criminal proceedings, it is necessary to make efforts to harmonize with efficient law enforcement by placing importance on the aspects of ensuring fairness of the procedure and ensuring due process.

차기 정부의 IT법제 개선 과제

김도승 경북대학교 IT와 법연구소 2012 IT와 법 연구 Vol.0 No.6

There, in 2012, are both the opportunity and risk. The revolution of smart-fusion being accelerated, the IT market will also be animated. Notably, both presidential and parliamentary elections which will be held this year include a major stake. As the next government puts efforts to develop the IT industry and the Korean society sufficiently, the IT will have a tremendous progress. This paper is devoted to analyze the evolution of legal systems around the information and communication technology, bound by the paradigm shift of IT. To do this, first, we studied the change of the paradigm of IT itself and assumed that the impact that will be made by the amendment. Then, we analyzed the legal system to the current time and demonstrated the problems of this system which should be produced since it does not correspond to the paradigm shift of IT. Finally, some guidelines are presented for adaptations of each division of the legal system so that they could be prepared for the evolution of the paradigm of IT. It is necessary to analyze the phenomenon of "Smart" and prospect further developments since the change of the paradigm of IT is revealed by the real-world applications. Such prospecting will be a key cruciel to establish the adjustment of legal system. We explain the three elements that represent recent developments in the climate of IT and propose some changes to be implemented as those create. 1. 'mobile' as the base material 2. 'social' as the kind of service 3. 'tangible content' as content. Especially, it is necessary to analyze the possible criterion for allocating roles between the public and the private and this will show the directions of institutional restructuring. We hope that this analysis would be useful to prepare to adapt the system initially. Studies of this article lead us therefore to present a vision of future policy "IT to contribute to build the social capital"

대포통장 명의인의 보이스피싱 피해금 인출‧사용행위와 그 죄책

박동률 경북대학교 IT와 법연구소 2017 IT와 법 연구 Vol.0 No.15

This paper examines the liability for crime of the account holder of a borrowed name bankbook used for voice phishing at each stage of making the borrowed-name bankbook, assignment of right, and withdrawing amount of loss. The conclusion is as follows. To begin with, this paper examined the account holder's act of making a borrowed name bankbook to sell it as a borrowed name bankbook. It is a legitimate exercise of rights to obtain a bankbook. Also, there is no obligation to notify the bank of the plan to sell it as a borrowed name bankbook. So this act does not constitute fraud for the bank. Next, the account holder's liability of crime for selling a borrowed name bankbook is as follows. First, the account holder has no obligation to notify the voice phishing criminal that "he plans to stop the transaction of the borrowed name bankbook and make a new bankbook and withdraw money." Therefore, the act of selling a borrowed name bankbook does not constitute a fraud for the voice phishing criminal. Second, the act of selling a borrowed name bankbook can be punished as accessory of fraud of the crime committed by a voice phishing criminal. However, there is a limit to the establishment of crimes of fraud in connection with the criminal intent of the aid. Third, the act of the account holder's selling a borrowed name bankbook is a violation of the electronic financial transactions act because it is a transfer of an access medium. Also, a voice phishing criminal's receiving amount of loss through a borrowed name bankbook is equivalent to accessory of violation of the financial real name law because it is a transaction using borrowed name bank account. Finally, the act of withdrawing and using the amount of loss by the account holder is not any offense under the criminal law. First, the account holder has exercised a legitimate deposit bond so it is not deception. It is also not the case that the bank made a disposition because of a mistake. Therefore, fraud for a bank can not be established. Second, the money withdrawn by the account holder is a stolen property, but it is only the result of the account holder's requesting return of deposit. And it does not mean that he has actually acquired the right to dispose of it by transferring occupation from the voice phishing criminal. Therefore, it is not applicable to the crime of acquisition of stolen property. Third, embezzlement can not be established because the keeping relationship of the withdrawn money between the account holder and the victim or the voice phishing criminal can not be acknowledged. Fourth, the account holder's act of withdrawing the money transferred to the borrowed name bankbook is obtained by exercising his rights as a deposit creditor. Therefore, it is not to be considered larceny, since it can not be seen as against the will of the bank.