전기통신사업법상 통신자료 제공 조항의 위헌성 판단 - 규범명료성원칙과 규범명정성(明定性)원칙에 기한 침해최소성 심사를 중심으로 -

This paper points out that a decision pronounced by the Constitutional Court of Korea on July 21, 2022, after nearly six years of trial, is quite problematic despite its positive aspects. In its decision, the Constitutional Court of Korea ruled that Article 83, Paragraph 3 of the Telecommunications Business Act (hereinafter “TBA”), which regulates offers of basic subscriber informations required by investigative agencies for investigative purposes, etc., is not in conformity with the Korean Constitutional Court, on the grounds that the provision violated due process of law due to “the lack of ex post facto notice” to data subject concerned. Since it is highly likely that the legislator will make improvement legislation to the extent that it supplements the deficiency of the ex post facto notice in accordance with the decision in the future, the meaning of the unconformity decision(i.e. ‘Unvereinbarerklärung') must fade to a considerable degree. In its decision, the German Federal Constitutional Court has used ‘the principle of the clarity of provisions and determinedness of provisions’ as supplementary criteria for an adequacy test on Article 113 of former TKG, and ruled that the provision violated adequacy requirements regarding the right to informational self-determination. This judgment is very useful in determining the unconstitutionality of Article 83(3) of TBA. Nevertheless, we believe that it is not appropriate to directly apply the above approach adopted by the Federal Constitutional Court to judging the unconstitutionality of Article 83(3) of TBA, because it deviates from mainstream adequacy test methods, which perform an adequacy test based on the persons concerned who are damaged by restriction of fundamental rights concerned. For a necessity test based on the principle of the clarity of provisions and determinedness of provisions, the following points must precede it: The meaning of “equivalence of effectiveness”, which is one of necessity requirements, should be extended to “similar equivalence”, as well as “complete equivalence” between alternative legislative measures and an actual legislative measure. Here, the similarity must be judged normatively by the Constitutional Court of Korea in concrete norm control procedures, from “the point of view of rational persons”, comprehensively taking into account purpose and intent of an actual legislative measure, the purpose and intent of the alternative legislative measures concerned, the process of debate in National Assembly of the Republic of Korea, the intensity and scope of the restriction of fundamental rights caused by such both measures, and other factors.