정보경찰작용에 대한 행정법적 쟁점과 과제

Abstract

In the modern information society, if a police agency that performs a task of preventing risks or dealing with crimes abuse its authority in the process of collecting and processing information, serious side effects can occur in terms of guaranteeing people's basic rights. For this reason, information police action should have clear legal grounds to prevent restrictions or infringement of the basic rights of the people. Information police action shall have a standard of authority separately from the code of duty in the Principle of Legal Saving, the scope of information subject to information police action shall be clear, and the procedures and limitations of information collection, preparation, and distribution shall be regulated in detail. On December 22, 2020, the revision of the 「Act on the Performance of Duties by Police Officers」 made the subject of information police action more specific and the new authority code was established. However, questions remain regarding the subject and scope of the information police action, and it should be clarified whether these regulations alone can allow the information police action as an infringement of basic rights. This paper aims to theoretically contribute to the maintenance of balance and harmony between the efficiency of information police action and the rule of law. A summary of this paper leads to the following conclusions:The first, revised 「Act on the Performance of Duties by Police Officers」 stipulates ‘prevention and response of risks to public safety’ as mission norms, and it also stipulates ‘prevention and response of risks to public safety like crime, disaster, and public conflict’ as authority norms, so it is important to interpret this uncertain concept according to police law theory. Second, there are more or less regulations of the current information police action, so in the case of legislation on information police action, balance and harmony of the two values of freedom and safety of the people should be achieved on the premise of the grand principle of rule of law. In addition, the scope and limitations of delegation legislation shall be observed when delegated to sub-regulations. Third, information police action can be performed not only to prevent risks but also to prepare for them in advance at the ex ante stage. Nevertheless information police action is not permitted without limitation at the ex ante stage of risk. It may be allowed exceptionally only if there is a justifiable basis. Fourth, information police action is an administrative action that can limit or infringe the Right to Personal Data Self-determination of the people which the Constitution protects. It should also be done within the minimum necessary limits for essential and direct information in order to maintain public safety. In the past, there were many images of negative information police action. However, the nation's freedom of speech index has been very high recently, which proves that negative factors such as illegal inspection have decreased significantly. In the future, it is necessary to stick to the original functions of the police through information activities based on the rule of law.