뉴스페이스(New Space) 시대우주자원 개발의 헌법적 쟁점 -우주조약상 ‘전유화 금지 원칙’과재산권 보장의 조화를 중심으로-

As human space activities undergo a rapid paradigm shift from the state-led ‘Old Space’ era to the private sector-driven ‘New Space’ era, the existing international space law framework—centered on the 1967 Outer Space Treaty—is confronting unprecedented public law challenges. In particular, whether the ‘Non-Appropriation Principle’ declared in Article II of the Outer Space Treaty restricts private enterprises from mining and exercising ownership over space resources has emerged as a significant legal controversy concerning the constitutional guarantee of property rights and economic freedom. This issue serves as a prime example of ‘legislative lag,’ where the pace of technological advancement outstrips the evolution of regulatory norms. The purpose of this study is to re-examine space resource development activities from a constitutional perspective and to conduct an in-depth analysis of the normative conflicts and potential unconstitutional elements that may arise during the domestic legal incorporation of international norms. First, this study provides a legal demonstration that space resources acquired through the immense capital and advanced technology of private enterprises fall within the protective scope of property rights guaranteed under Article 23 of the Constitution. Specifically, it examines how interpreting the Non-Appropriation Principle as an ‘absolute prohibition’—extending even to private entities—not only contradicts the fundamental values of the Korean Constitution, which is based on private property and a market economy order, but also risks violating the principle of proportionality and the prohibition against infringing upon the essential substance of fundamental rights. Furthermore, this study presents specific legal grounds for the legitimacy of space resource appropriation by drawing analogies from the protection of In-Situ Resource Utilization (ISRU) technology in intellectual property law, the principles of rights attribution in public contract law, and the legal doctrines surrounding asset protection in virtual territories such as the metaverse. Additionally, this research performs a constitutional review of the liability framework for space activities. It analyzes the points of conflict between the ‘concentration of liability’ on the launcher and the principle of strict liability under the current Space Damage Compensation Act versus the principle of self-responsibility and the right to equality of private entities within the complex industrial ecosystem of the New Space era. In particular, it emphasizes the necessity for the State to strengthen its supplementary compensation obligations as a final safety net, ensuring that the compensation gap created by liability caps does not substantially infringe upon victims' right to trial and the right to claim state compensation. In conclusion, for the Republic of Korea to secure global normative leadership and safeguard national technological security in the New Space era, it is essential to establish clear domestic legislation that overcomes international legal ambiguities. This study suggests that establishing a legal foundation where constitutional values and industrial demands harmonize—such as codifying private ownership of space resources and building a rational risk-sharing mechanism proportionate to risk contribution—is a prerequisite for the construction of a sustainable space economy ecosystem.