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권건보(Kwon Keon-bo) 한국공법학회 2004 公法硏究 Vol.32 No.5
Personal information is contained within the outward focus of personality. Public dissemination of information about private matters directly affects how society views an individual, and may affect that individual's role in society. It shapes the individual's social identity, and thus affects the individual's actual identity, since both society and the individual's role in society shape identity. Therefore, monitoring by the government and other people has given rise to serious threat to the dignity and value as a human being.Constitutional basis to effectively cope with these risks can be found in the right of self-control over personal information, distinguished from traditional privacy right. Of course, it can be related to the freedom of communication as a special constitutional right, if it relates to the instruments of communication.In ubiquitous environment, the infringement of personal information especially by closed circuit television(CCTV), camera-equipped cell phone(camera phone), location checking system, radio frequency identification(RFID), etc can be at issue. In coping with legal measures, the points we must consider are as follows.First, in relation to the infringement of the personal information by CCTV, it will be necessary to legislate the law comprehensively regulating the entities who can establish the CCTV, installing place, kinds of equipments, operating method and procedure, the right of the subject, and the supervision of the competent institution, referring to the international guideline and the legislative cases of foreign countries.Second, in providing the legal and institutional device, responding to the infringement of personal information by camera phone, the viewpoint of harmoniously ensuring the right of camera phone users and filming counterparts is needed. Therefore, the prohibition plan of confidential filming will be more necessary than the prohibition method of overall marketing or the prohibition of carrying in public spaces.Third, in relation to the problem of personal information infringement by location checking system, first of all, the collection and usage of location checking information should be principally agreed by the parties concerned based on the pre explanation, and the handling should be implemented in restriction, a period of time to provide additional service, and anonymity.Fourth, in order to cope with the personal information infringement by RFID, the positive review of the legislation will be necessary to protect personal information in using the electronic tag. Here, the principles of the protection of individual information such as the consumer interest, restriction of collecting and using information, the clarification of purpose in releasing and using the information, the ensuring of the individual participation right, the securing of the accuracy and safety and so on shall be reflected.Consequently, it may be more important than anything else to try to find a solution for a plan to harmonize the utilization aspect of the personal information with protection aspect in the ubiquitous age. It can be converged on discussing principles of harmonizing a request of personal information protection with a constitutional right of others such as public interest, freedom of communication or business of the industry, which collide with the former. The concrete contents can be found in general principles of the restriction of constitutional rights and special principles of personal information protection.
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김유성 교수 정년기념호 : 논문 ; 선거방송심의제도의 헌법적 검토
성낙인 ( Nak In Sung ),권건보 ( Keon Bo Kwon ) 서울대학교 법학연구소 2006 서울대학교 法學 Vol.47 No.1
Election broadcasting bears great significance in these days. We acquire information about political opinion, campaign pledges and personal character of candidates through election broadcasting. And we exercise our voting rights on the base of these informations. In this aspect, election broadcasting should be the stage where every participant expresses his opinion freely and fully and expressed opinions go through verification. But the freedom of election broadcasting should be restricted because of the fairness of election and broadcasting. Of course, in its restricting the impartiality should be affirmative and substantial one rather than superficial one. Because we ought seek fairness among active expressions not in the passive silence. With the increased impacts of broadcasting in the elections, the responsibility of fair reports on the elections has been emphasized. As a result, the Election Broadcasting Deliberation Commission was established as an independent institution to monitor the fairness of election reports by the Act on Elections for Public Offices and Prevention of Electoral Malpractices of 1997. But the deliberation by Election Broadcasting Deliberation Commission has a chilling effect on the freedom of election and broadcasting. Accordingly the system that deliberate on the fairness of Election Broadcasting can raise a few constitutional questions. it may be the best example of this whether the deliberation system puts excessive restrictions on the freedom of election broadcasting or not. But Election Broadcasting Deliberation System as not preliminary regulation can be justifiable in that the nation needs to effectively ensure the fairness of election broadcasting. Of course, it is necessary to continuously reform the system for protecting the freedom of election broadcasting to the maximum possible extent. This study drew some directions for reform of legal system relating to the election broadcasting deliberation. The suggested legislation revisions are as follows. First, the measure of apology to the public(Election Act §8-2⑤; Broadcasting Act §100①⒤) may be abolished. And the Election Act §256②(iii) should be revised because the criminal punishment by reason of the nonperformance of Election Broadcasting Deliberation Commission`s decision is an excessive restriction on constitutional rights. In addition, for the prevention of external pressure it is necessary to reconsider the recommendation method of the Deliberation Commission. Finally we believe that it is proper to convert the Deliberation Commission into a permanent institution.
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