지능정보사회에서 기본권보호의무와 기본권의 상충에 관한 연구 - 기본권 보장을 위한 입법심사기준을 중심으로 -

Abstract

The concept of an intelligence information society pertains to a societal construct whereby individuals participate in political decision-making and economic activities through internet-based platforms that have arisen as a consequence of the advancement of information and communication technology. In such a society, the role of these platforms is of critical importance, and the potential for private entities operating these platforms to infringe upon the constitutional rights of individuals is heightened. Constitutional theory is concerned with the protection and violation of constitutional rights by private entities through the juxtaposition of constitutional rights and the obligation to safeguard such rights. This collision of constitutional rights and the duty to protect them engenders a triangular relationship where the state intervenes in the constitutional rights of private entities, surpassing the binary relationship in which the state violates the constitutional rights of individuals. However, a more comprehensive discourse is warranted regarding how the collision of constitutional rights and the duty to protect constitutional rights can effectively address the infringement of constitutional rights by private entities, as well as the criteria that should be implemented when regulating the relationships between private entities and constitutional rights. Hence, this paper aims to delve deeper into the standard of review that must be considered when legislating on constitutional rights relationships between individuals and platforms, where the collision of constitutional rights and the duty to protect constitutional rights are concurrently considered. The violation of the rights to determine personal information by platforms can be considered as a collision of constitutional rights between private entities, thereby raising concerns about the State's obligation to protect constitutional rights, particularly in the context of the unequal power dynamics between dominant platforms and individuals. In light of this, the present investigation views the collision of constitutional rights between private entities as a matter of the state's responsibility to safeguard the constitutional rights of aggrieved parties and the state's regulation of the constitutional rights of offending parties. To solve this problem, it is necessary to review the standards of legislative drafting regarding the constitutional rights relationships among private entities, particularly with regards to the principle of prohibition against excessively low protection. To this end, I propose two recommendations: to establish a systematic approach for the principle of prohibition against excessively low protection to offer a more robust safeguard of the constitutional rights of individuals who are often in a weaker position. Secondly, a possible solution may involve the concurrent application of both the principle of prohibition against excessive restriction and the principle of prohibition against excessively low protection when legislating.