국가기관의 금융정보 접근․이용과 그 법적 쟁점 - 금융실명법과 특정금융거래보고법을 중심으로 -

Abstract

With regard to economic democratization, the new government considers various measures to detect tax evaders and to impose reasonable taxes on them corresponding to their revenues for the fair taxation purposes. In this regard, the National Tax Service (“NTS”) has been at the center of a dispute by requesting a reform to the “Act on Reporting and Use of Certain Financial Transaction Information”(“the Act”) towards allowing NTS to have access to the financial information kept by Korea Financial Intelligence Unit(“KFIU”). Globally, it's been gaining grounds to strengthen regulatory framework of personal information protection. In Korea, an individual’s right to distribute, disclose, collect, maintain, and use of his or her personal information on his or her own is guaranteed as one of constitutional rights. The Act on Protection of Personal Information which was enacted in 2011 governs both the public and private sectors in regard to personal information protection. However, in many cases, the government agencies collect, keep, and use individuals’ information and further provide such information to another agencies for the public interest. As functions of the government have been diversified and complicated, the government agencies’ demand to individuals’ information continues to increase, causing relevant legislations to be adopted in such way as stressing efficiency in use of information rather than protection of information. There is discrepancy in requirements for request of financial information between the law enforcement agencies and other government agencies as provided under the “Act on Financial Transaction under Real Name and Guarantee of Secrecy”(the “Real Name Act”). The law enforcements such as prosecutors and the police are required to request for a search warrant for the use of financial information and the court would apply strict privacy standard in reviewing such request. On the contrary, other government agencies may have access to and use financial information upon satisfying certain criteria which do not include the court’s judicial review or control. The Act so called the Money Laundering Act further loosens the requirements for use of financial information by other government agencies. The Act does not provide for any legal measures or remedy to guarantee an individual’s right to financial privacy. Reckless use of financial information by the government agencies for the administrative purposes may result in abuse of personal information. Thus, in case where the government agencies need to use individuals’ financial information even for the public interest, such use would be allowed only subject to the due process and in compliance with general principles of personal information protection such as openness, individual participation, legal remedy for civil rights. accountability, etc.