전파의 법적 성질에 관한 고찰

Radio waves are a vital and limited national resource. In today's era of modern broadcasting and communication, radio spectrum contributes to medical service, public welfare, transportation infrastructure, public safety, job creation, and economic growth, enabling us to promote the new paradigm of ubiquitous information society. Moreover, the radio waves are a 'key resource' for the evolution towards information and communication society, and therefore mankind has to seek for an efficient way to maximize the economic value of the radio waves, the limited natural resources. In November 2009, the Korea's current mobile phone subscribers has reached 47.84 million. Under Radio Waves Act Article 2, Sub-paragraph 1, the radio waves refer to electromagnetic waves transmitted to space without artificial induction, having frequencies within the scope defined by the International Telecommunication Union(hereinafter referred to as 'ITU'). Various radio spectrum management system is also provided in the act to improve efficiency in the usage of the radio waves. Radio Waves Act, however, does not enact a provision for the legal nature of radio waves, this paper proceeds a study on the legal nature of radio waves to discuss radio spectrum management systems. Firstly, this paper is to examine the comparison between the radio waves and the frequencies by referring to the legal nature of radio waves. Secondly, the legal nature of radio waves can be divided into the nature as resources, as government issues (is called 'ӧffentliche Sache' in German), and as objects. (1) Concerning the nature as a resource, the problem is raised whether the radio waves, under Constitution of the Republic of Korea Article 120, Paragraph 1, the provisions of patent right, are a natural power available for economic use or not. Also, this paper is to consider the attitude of theory on the ownership of radio waves in public law. (2) Nowadays according to many scholars, the radio waves are deemed as an immaterial being, looked as resources, goods, and under administrative law, government issues. The research is conducted to see if the radio waves have fulfilled the requisites to be considered as a government issue or not. It is to examine classification of radio waves as government issues. (3) Next, concerning the nature as an object, this paper is to consider the attitude of traditional theory on government issue's nature as an object, and to see if the radio waves as a government issue under Civil Act Article 98 are a manageable natural power or not. In conclusion, the radio waves are a unique resource with a speed of light and also unlike land and mineral resources it can be renewed limitlessly. Recently, market-based radio spectrum management systems that applies the economical characteristics is introduced. It is necessary to reconsider if the State has the ownership of the radio waves in the current legislative system. To promote public welfare by facilitating the utilization of radio waves, within the scope of necessity, the radio waves are not to be regulated by the Civil Law while it is to be done so by the Public Law. And the rapid development of information and communication technology assisted in overcoming the problem in management.