인터넷法學의 成立과 課題

백윤철 한국인터넷법학회 2003 인터넷법연구 Vol.2 No.-

The Internet law can be defined as a legal science to deal with various legal affairs arising from the Internet. It covers such issues as hacking,freedom of expression, personal information prote ction, crimes based upon the Internet, electronic commerce, intellectual property rights, jurisdiction, ete. Then what kind of law is required in the Internet world? Take an example of electronic commerce. If you use digital money and employ electronic signature or certification, you may not be sure of the legal effects of offer, acceptance, effective payment and so on. These legal problems do not exist in the pre-Internet age. It means the traditional law and regulation would not operate effectively in the new Internet age. Nowadays ordinary people take to e-business and electronic cash, and legal affairs related with the Internet apply to everybody. Against these backdrops, the United Nations Commission on International Trade Law (UNCITRAL) established the Model Law on Electronic Commerce in 1996. A number of states in the United States began to adopt uniform laws on computer information transactions, i.e., UETA or UelTA. In the new world of the Internet, states and governments are more often than not engaged in the legal quagmire. For example, citizen's unlimited access to public information, government's collection and utilization of citizens' information are usually on the top list of nation-wide disputes. In this regard, the government activities in the Internet should be strictly subject to the due process of law. So the border line between the public law and private law has been diminished. The most startling issue is cyber-terror which poses an impending danger to the whole nation, not to mention police. As we often experienced, cyber-terrorism by way of hacking and computer viruses makes havoc of the infrastructure of the society, and, in the worst case, paralyzes the basic function of the nation. It is quite different in dimension from the usual privacy or criminal issues. With respect to the freedom of expression, in the Internet era, any person shall be an information sovereign entitled to material equality. All citizens on the net, so-called netizens, are required to have capability to handle information. It's because privacy can be protected on condition that the data subject has an individual right to control the circulation of information relating to himself. An effective e-government is another target that each government aims for in the information age. It might be realized by digitalizing administrative services and promoting knowledge management so as to enhance the competitiveness of the nation. The digitalization of government services without any possible infringement on the citizens'fundamental rights and liberty calls for the legislation of relevant laws and regulations as well as the utilization of information technologies. In the area of e-commerce, any legal disputes or troubles regarding transactions in the cyber shopping mall would undermine the safety and trustworthiness of transactions on the parr of consumers. And the electronic payment system and taxation of digital goods would be improved by concerted efforts of states involved in the international trade. Social changes triggered by the developments of the Internet as described above necessitate the effectively operating legal infrastructure. Each and every players in the Internet world including the government, academic community and business circles should take parr in the legislation and implementation of the Internet law. In other words, the Internet law is a legal science in the primitive stage, which will be upgraded by integrated efforts of all the players.

인터넷환경에서의 지적소유권법제의 체계와 과제

이상정 한국인터넷법학회 2003 인터넷법연구 Vol.2 No.-

With the cyberspace explosively expanding through the Internet, a number of issues and problems take place beyond the scope regularly controlled by the existing laws. The striking example is intellectual property. While the development of the Internet is for the dissemination and sharing of information, intellectual property is for the protecrion and control of the information. The Internet and intellecrual property are working reversely. The Internet gives rise to a lot of problems in the area of intellectual property, especially, in the copyright, patent and trademark area. All kinds of copyrighted works have been made intO one medium by the development of digital technologies. Recently, the distinctive character of the Internet has caused so many copyright issues to occur. Those are the temporary copy In the RAM, linking, framing and the liabiliry of ISP or OlSP, ete. For an instance, file-sharing programs pose too complex problems to be solved by the conventional copyright law. In some countries the Internet-related invention - the business method inventions, user interface, communications protocol, data compression technology and encryption technology - has been awarded patent rights. In particular, business method afforded by the patent rights, encourage people to pay attention to banking and finance, and other services outside the traditional manufacturing and materials. The ongoing conflicts between domain names and trademark rights also generate difficult social issues. To solve these problems will be conducive to the new trade order of information society. The intellectual property acts have changed with the advent of the digital or Internet environment. The current Copyright Act and Computer Programs Protection. Act of Korea have been influenced by the WIPO Copyright Treaty and the WIPO Pedormance and Phonograms Treaty of 1996. In Korea, the transmission right was added to author's rights and the prorection of the technical measures and the right: management information are newly enacted in Computer Programs Protection Act. Many other nations are also interested in the amendment to existing laws in line with WCT and WPPT. For example, the revised Japanese Copyright Act of 1999, the U.S. Digital Millennium Copyright Act of 1998, the ED Directive. With respect to how to solve the disputes arising from IP, alternative dispute resolution (ADR) should be noted. Administrative procedures or ADR mechanism would be a good solution to the arguments regarding trademarks, service marks and domain names. With conflict between trade mark and domain name, the Unified Domain Names Dispute Resolution Procedures (UDRP) came into the spotlight. Now the intellectual property develops into a new dimension in the cyberspace. To make balance between the interest of right's holders and that of the public is the' important task of the future inteIlectual property system.

電子政府法의 基本構造와 課題

박균성 한국인터넷법학회 2003 인터넷법연구 Vol.2 No.-

In March 2001, Korea witnessed the legislation of the Electronic Government Act, formally called the "Act Q)ncerning the Promotion of the Electronic Administrative Services for the Realization of the Electronic Government. Based on this, the regulatory ordinances were enacted in June 2001. There still remain, however, several other things that call for perusal. First of all, it is necessary to examine whether there occurs any conflict berween these newly legislated act and ordinances on the one hand, and currently existing acts on public administration or information and communication on the other. The latter are assumed to be concerned with paper documents only, so if they turn out to include some clauses that pose obstacles to electronic administration, necessary measures must be taken. Secondly, further elaboration is called for concerning the following with respect to the content of the Electronic Government ACt: the time of sending and/or arrival of the electronic documents, verification of the arrival and/or receipt, signing, sharing information among administrative institutions, public access to electronic information, electronic administrative procedures such as reporting, fIling and notifying by electronic means, ete. The E-Government means more than the introduction of the information technology in the government operation. It demands a government reform and a fundamental change in the relations between the administration and citizens. Hence the administration law needs to be adapted to the electronic government. A electronic administration law will take shape in such a manner.

인터넷상의 기본권의 제한과 한계

김대환 한국인터넷법학회 2003 인터넷법연구 Vol.2 No.-

In the 21st century, the problem of the restriction and limitation of constitutional rights is of the most important interest in the field of the public law. Where the freedom and the rights of the individual are not protected, human society could not exist any more. Therefore, all obligations of the state finally concur into the obligations to protect the freedom and the rights of the individual within itself. Compared with the contents of the constitutional rights in the past, those of today have changed very much. The function of the state has also changed with it. The major change is the shift of the obligation of the state related to constitutional rights: from not to infringe inherited and untouchable freedom and rights of the individual to protect the right to live through positive action. Because the human being always wants to be free and takes to the self-determination, the freedom in the natural meaning is still meaningful to him at any time. Basically this could be said equally today, the very Internet age. Furthermore, the Internet made a person mentally more free. The ocean is in front of him. Also the ship in front of him. The thing necessary to him as a captain is the freedom to voyage intO the sea. The sea of information, called Internet, is no more under the control of one country, and exists as a stern reality just like the sea before a captain. And one more thing necessary to him is the freedom to decide everything by himself during the sailing. This idea leads us to think about the image of the human being which our constitution makes prerequisite. It is, as memioned above, because the right of self-determination of one person becomes more important in the Internet age. In comparison with the previous media, the subjective right of self-determination becomes more significant in the Internet. We could say additionally, the Internet has amplified the sociality of personal behaviors through it. The Internet overcomes relatively the resrriction of the time and space under which the previous mass media, i.e., television, newspapers, and racho, are restricted. With the development of the Internet technology, the restrictior,d) disappear more and more. When we understand the Internet from this standpoint, the fundamental axle of the policy about the constitutional rights related with the Internet could be found. That policy program should be for the enforcement of the right of self-determination and presuppose the independem person with universal sociality. Although technically the opposite could be done, normatively it should be rejected. This article is written from the point of that argument.

인터넷법학의 민사법적 과제와 체계

김민중 한국인터넷법학회 2003 인터넷법연구 Vol.2 No.-

모바일 비즈니스 콘텐츠의 법적 보호 - 게임콘텐츠를 중심으로 -

이중구(Lee Jung-Gu) 한국인터넷법학회 2004 인터넷법연구 Vol.3 No.2

인터넷과 國際裁判管轄

석광현 한국인터넷법학회 2003 인터넷법연구 Vol.2 No.-

Traditional ptivate international law looks to geography when determining international jurisdiction to adjudicate. But in the cyberspace geographical borders of countries can be ignored. In this context, a question arises as to whether the traditional private international law rules on determining international jurisdiction to adjudicate are able to solve the international jurisdiction issues arising from international disputes in the cyberspace. In order to answer this question, the author first revIews the private international law rules on the international jurisdiction issues arising from international disputes in the real world. This is particularly important under Korean law since the Conflict of Laws Act of Korea which has been amended as of July 1, 2001 has introduced new rules on determining international jurisdiction. The author then reviews the question as to wherher such private international law rules on the international jurisdiction issues arising from international disputes in the real world as such can be applied with our modification to international disputes in the cyberspace or whether some modifications are indispensable. In analysing such issues the author distinguishes disputes into several categories, namely, disputes arising from contracts, disputes arising from torts, etc. In addition, the disputes arising from contracts can be further classified depending on whether such contract is a contract between business and business(B2B) or a connan betWeen business and consumer (B2C). This distinction is meaningful since the so called protective jurisdiction under the Korean Conflict of Laws Act should also apply to international disputes in the cyberspace. The author concludes that at present the proper way appears to be to develop private international law rules on determining international jurisdiction in the cyberspace by adapting, or introducing some flexibility into, the private international law rules on determining international jurisdiction in the real world to reflect the characteristics of the cyberspace. However, the author notes that we need to pay attention to the rapid development of so "lex cyberspace" or "lex internet" since if new private international law rules on determining international jurisdiction in the cyberspace could be developed as a part of lex cyberspace or lex internet, it may to a certain extent replace the traditional private international law rules on determining international jurisdiction which are mainly targeted at the real world.

모바일 지급결제의 법적 문제점 검토

나승성(Na Seung-Sung) 한국인터넷법학회 2004 인터넷법연구 Vol.3 No.1

인터넷상 명예훼손과 ISP의 법적 책임

백윤철 한국인터넷법학회 2002 인터넷법연구 Vol.1 No.-

인터넷과 표현의 자유

김배원 한국인터넷법학회 2003 인터넷법연구 Vol.2 No.-

In the modern information society where real life and cyberspace coexist, the limitation principles of law ruling free expression in real life should still apply to free expression in cyberspace. The internet often used as a synonym of cyberspace, is characterized by interaction, infinity of time and space, anonymity, internationality, ete. These show 1) the characters of technology and media: the internet based on the development of the information and communication technology has distinctive characteristics from print, broadcasting, communication as media. 2) the character of space ' the internet builds up cyberspace different from real life in the physical world. Problems of rhe internet and free expression have been led to consider how the limitation theories, the constitutional protection of free expression on the internet, could be applied, given these natures of the internet. This essay firstly examines the classical theories of free expression, their current modifications, the relationships between free expression and free information in the information society and the limitation theories of free expression. Then It re-examines the limitation theories of free expression on the internet considering the characters of technology and media and the character of space discussed above.