한국의 ICT 거버넌스 재설계 방안에 관한 시론적 연구 ― 단일행정부 이론과 독립규제위원회 이론을 중심으로 ―

Along with the launching of the new administration in Korea, the reshuffling of the government organization has become a major issue. In particular, the Korea Communications Commission, which has exercised broadcasting and communications-related administrative powers in the form of an independent regulatory commission ,is being the subject for a change into single decision-making agency for the purpose of promoting the ICT industry. Simultaneously, a consensus is being established over the maintenance of the broadcasting regulatory work in the form of a commission. In connection with the foregoing, taking a look at the relationship between the unitary executive theory and independent regulatory commission gives an important implication. The unitary executive theory positions that the President at the top level should be able to control the decision-making of the executive branch in accordance with the clause of the U.S. Constitution providing that the executive power shall be vested in a President of the United States of America. Pursuant to the Necessary and Proper Clause of the U.S. Constitution, an independent regulatory commission is established based on a special law enacted by the Congress for the purpose of coping with specific economic and social issues. An independent regulatory commission exercises administrative powers, such as dispositions, in addition to quasi-legislative and quasi-judiciary powers, but does not belong to any of the any branches. This aspect goes against not only the principle of the separation of powers but also the unitary executive theory, and the constitutionality issue thereof is still under debate. The unitary executive theory can also be said to apply in Korea in that the executive powers belong to the government headed by the President. On the other hand, an independent regulatory commission is merely allowed to be established under the laws if it is necessary to carry out parts of the works concerned pursuant to Government Organization Act without direct constitutional grounds. In light of the principle of the President’s enforcing executive powers through each ministry under the constitution, the exercise of executive powers by an independent regulatory commission can be regarded as a disparate point from the Korean constitutional order. Further, the exercise of executive powers completely independent from the President can raise doubts for being even strongly unconstitutional. The issue concerning the organization for the next administration, in particular with the re-designing of the ICT governance, is (i) the question over the establishment of an single decision-making agency and (ii) the configuration of the relationship between the single decision-making agency and the broadcasting regulatory agency if the single decision-making agency is established. In this regard, it is essential to consider for each of the foregoing question the principles of reactivity, constitutionality, and legality. The reactivity principle suggests for an organization which meets the administrative needs and the changes in the environment, and thereby necessitates for the establishment of an single decision-making agency to construct the ICT ecosystem labeled as CPND. The constitutionality and legality principles provide that the designing of a relevant commission in accordance with the establishment of the single decision-making agency must not violate the constitution and the laws. A broadcasting regulatory commission must be designed by taking into account the following principles: (i) the executive powers exclusively belong to the President; (ii) the executive powers shall be exercised through each of the executive department; and (iii) formation of an exceptional representative agency. With this in mind, it is deemed improper to transfer administrative functions corresponding to conventional exercise of administrative powers, such as issuance of approval for broadcasting enterprisers, to the broadcasting regulatory commission or to make the foregoing commission independent from the President. In conclusion, a demand for the role by a “smart” government exists to overcome the following challenges we have been facing: the persistent global economic crisis; the undermining global competitiveness in the high-tech industry; increase in disparities between large companies and SMEs, between generations, and between regions; and the deepening of the youth employment issue. In such “smart” era, companies should become not a fast-follower but a first-mover, and the ICT agency should dedicate itself in establishing an atmosphere whereby it acts as the mediator, facilitator, and promoter for the entire digital ecosystem as well consolidating fair competition rules. Thus, it is necessary to conceptualize the design of an ICT governance well-suited for the “smart era” as the initial step to achieve all of the foregoing tasks.