개인정보에 관한 법적 개념의 변천과 그 시사점 - 개인정보보호법의 해석과 입법개선에 있어서 개인정보자기결정권과 개인정보권 논의의 기능과 역할을 중심으로

Despite the enactment of the Personal Information Protection Act (PIPA) in 2011, the term “right of self-determination over personal information” as a constitutional fundamental right continues to play a central role in litigation practice. At the same time, in order to highlight its distinction, the academic term “right to personal information” is occasionally used. The legal concept on personal information has evolved from privacy to the right of self-determination over personal information as a constitutional fundamental right and was later institutionalized as a statutory right through the enactment of the PIPA. However, the scope of protection, the level of safeguards, and the nature of this right are still undergoing a process of evolution. Historically, it took considerable societal progress to acknowledge privacy as a negative freedom the absence of interference. Today, against the backdrop of rapid technological advancement and structural shifts in society, this has developed into a demand for positive freedom: the individual’s control over their private life and personal information. More recently, this trend has even reached the stage of calling for recognition of the economic value of personal data as a more active right. However, this heightened level of legal protection risks obstructing data utilization, which may hinder socio-economic development. Thus, a careful discussion is now required to balance the protection and use of personal information. Based on the legal evolution of personal information concepts, this article examines: (i) the distinction between privacy and the right of self-determination over personal information; (ii) the relationship between the constitutional right of self-determination over personal information and the statutory PIPA; and (iii) the future direction of personal information protection legislation surrounding the academic theory on the nature of personal information as data and the debate on the right to personal information. Although personal information belongs to the private realm, it is not exclusively private. Rather, it acts as a connector between the individual and society, giving it a unique character. Any discussion on personal information must take this into account. Moreover, this characteristic plays a crucial role in shaping the cultural DNA of society in an era of rapid technological and social change. As specific issues on the legal framework for personal information, this article will handle: (i) the constitutional position of the right of self-determination over personal information (including its relationship to other fundamental rights), and the scope of protection (i.e., the definition of personal information); (ii) its judicial status after the enactment of the PIPA (e.g., whether it serves as a standard in balancing interests, or whether a general balancing rule should be introduced); and (iii) the future direction of personal information law (e.g., whether the rights of data subjects should be strengthened through the right to be forgotten or information property rights, or whether data users’ rights should be enhanced through collective data rights or data ownership, and how to harmonize data protection with utilization). Such discussions must be grounded in the evolution of legal concepts and changing societal perceptions surrounding personal information.