개인정보자기결정권침해소송에서의 위법성의 증명책임- 서울중앙지방법원 2018. 12. 13. 선고 2016가소5944347사건을 중심으로 -

Until now, korean legal profession has been living in a separate world for practitioners and professors. Practitioners, like field commanders, have been bent on dealing with cases based on vague professional intuition without any academic or logical basis, and theorists have also built academic achievements that are virtually impracticable in their own world. During 15 years as a judge or a lawyer, I felt sorry and dangerous for the situation, specially the judges' vague intuition to narrow down important issues. Some of the numerous intuitive judgements made during the trial should be more clearly highlighted as explicit issues, and should be illuminated by academics and reason. Therefore, this paper reveals the hidden issues that were not highlighted in the trial, but which dominated the success or failure of the trial, and looks at this issue in light of the existing academic achievements and shows how the conclusions differ. The court in this case rejected the plaintiffs' claims, saying that the plaintiffs failed to fulfill their responsibility to prove their illegality in the case of seeking damages for violating personal information self-determination rights. Considerinf the progress of the case, it can be seen that in order to reach this conclusion, the court implicitly judged that the burden of proof of illegality lies entirely with the plaintiffs. However, the court's judgment would have been different if it had reviewed existing academic achievements in the rights of personal information self-determination, the relationship between rights violations and illegality, and the conversion of burden of proof. Therefore, this paper will first examine the origin of illegality, which is the requirement of an illegal action suit, and will reveal that infringement of rights is the most representative case of indicative of illegality. And after discussing the burden of proof, we will look at the fact that personal information self-determination, which the plaintiffs claim was infringed upon, is both a basic right under the Constitution and a right based on the actual law. Finally, since the plaintiffs have fully asserted and proved their rights were infringed, the subjective burden of proof of illegality will be shifted to the conclusion that the defendant must prove himself to be legitimate in his actions and that failure to do so will result in the burden of defeat. This conclusion would also add that it is equally true considering modern factors regarding the distribution of attestation responsibilities, such as the defendant's obstruction of evidence that controls all substantive evidence, and the need for power control over the communication data request system.