「디지털전환 특별법」의 문제점에 관한 법적 고찰 - 사후적 입법평가와 재산권 침해여부를 중심으로 -

The digital television transition, also called the digital switchover or analogue switch-off, is the process in which analog television broadcasting is converted to and replaced by digital television. This primarily involves the conversion of analogue terrestial television to digital terrestrial. In many countries, a simulcast service is operated where a broadcast is made available to viewers in both analog and digital at the same time. As digital becomes more popular, it is likely that the existing analogue services will be removed. In some cases this has already happened, where a broadcaster has offered incentives to viewers to encourage them to switch to digital. In other cases government policies have been introduced to encourage or force the switchover process, especially with regard to terrestrial broadcasts. Government intervention usually involves providing some funding for broadcasters and, in some cases monetary relief to viewers, to enable a switchover to happen by a given deadline. South Korea's analogue transmissions will terminate at 04:00 on Monday, 31 December 2012. S. Korea force the switchover process. For the purpose, S. Korea enacted a law called “A special act on the digitalization of terrestrial television broadcasting and the activation of digital broadcasting” in March and its implementing ordinances in June 2008. This study aims to scrutinize the legislative intent of digital switchover prescribed by the special act on the digitalization of terrestrial television broadcasting and the activation of digital broadcasting, in terms of ex-post evaluation. The evaluation factors are divided into two categories; contributing to improvement of rights of viewers and development of the national economy. This study also reviews the constitutionality of the current digital switchover method. How to enable a switchover to happen by a given deadline has an essential question to be answered to the Constitution's limit of viewers property rights. This Challenge is in separable from the question of how much of legislature formative power is constitutionally vested to the national legislature and how much the Constitutional Court should defer thereto in reviewing the constitutionality of the legislation, in terms of democratic legitimacy of it's function of constitutionality review over statute. We would regard the prescriptions about the limit of property right expressed in economic clause as the forming of social restriction of the right of property.