개인정보 보호법제의 비범죄화 주장에 대한 검토 - 독일 헌법의 일반적 인격권에 대한 보호와 미국 헌법의 프라이버시권에 대한 보호의 비교를 겸하여 -

Personal data protection laws in South Korea, which are established on the fundamental right of informational self-determination, require any data controller to obtain subject’s informed consent to process her personal data and those who breach the informed consent requirement are sanctioned by criminal and administrative penalties. Some argue that the current legal framework on privacy is not suitable to provide internet users with substantial protection for their privacy and, especially in the private sector, the informed consent model of personal data protection should be substituted by the notice and choice model as is enforced in the United States. Some also contend that criminal sanctions of those who process personal information without consent should be abolished as industry self-regulation would provide for enough protections for the privacy of personal information. A deeper look at the core features of the U.S. Constitution would be necessary to understand how the privacy policy and opt-out mechanism has been evolved in the United States. The Constitution of the United States has been developed as a charter of negative liberties to protect Americans from oppression by state government. It does not impose any affirmative obligation on the State to protect its citizens against private actors. It means that the fundamental rights of the U.S. Constitution cannot be infringed by another private person, the U. S. Constitution does not apply to legal relations between private entities as long as there is no state action, and the states does not take any responsibility for ensuring the fundamental rights in private sphere. On the contrary, the Constitutional Court of Korea has been held that the basic rights establish an objective ordering of values, which should be respected in all areas of law such as legislation, public administration, and adjudication. Consequently, the legislature should carry out its duty to criminalize the infringement of privacy, if the essence of the fundamental right of informational self-determination were violated or threatened to be violated. The self-regulation model of the United States is not harmony with the Korean constitutional system which recognizes the positive obligation of legislature to protect the constitutional rights of the citizen. Moreover, it would not be reasonable to abolish criminal penalties only in relation to the protection of online privacy as criminal sanctions are broadly used to protect the fundamental right of informational self-determination in other contexts.