알 권리의 재구성 - 변호사시험법 제18조 제1항 위헌확인 사건의 판례 평석을 겸하여 -

The right to know, which is more widely known as the right to information, is internationally recognized as a human right. Korea is one of a few countries who have acknowledged it as a constitutional right based on other constitutionally protected rights and principles through judicial interpretation. Since the 1989 Forests Survey Inspection Request case, the Constitutional Court of Korea(hereinafter referred to as “CCK”) have explicitly recognized the right to know as a fundamental right based upon the Article 21 of the Korean constitution, which guarantees the freedom of expression. According to CCK, the right to know is inherently included in the freedom of expression as free access, collection and processing of information is a precondition of free communication of ideas. Moreover, CCK clearly stated that the core of right to know is people’s free access to the information held by the government. CCK deserves much praise in terms of holding the Korean government accountable and promoting democratic participation by way of recognizing the right to know before legislation of the freedom of information act in Korea. However, CCK’s reasoning has a fatal weakness. Most of cases dealing with the right to know involve petitions by claimants who have special interests in government records they are seeking. Though, in reasoning, CCK has confirmed that the people have the general right to request disclosure of information from the government, CCK, in practice, has assured that the complainants have legitimate interests in requesting disclosure of information from the government. The request to demonstrate legitimate relationship between information seekers and government records is incompatible with the right to know. For the right to know guarantees that government records are accessible by anyone in a democratic government. The right to access government records in the capacity as interested parties is only recognized when the government records are indispensable for the exercising of their other constitutional rights, such as the right to fair trial. Furthermore, it is worth considering that some information held by the government is personal information protected by information privacy or the right to self-determination over personal information. Under the right to informational self-determination, which CCK also recognized as a constitutional right though it is not expressed in the Korean constitution, information subjects are entitled to access their personal information and rectify errors.