혁신과 규제 : 상호 갈등관계의법적 구조와 갈등해소를 위한 법리와 법적 수단

Abstract

in all countries of the world across the ages. They have become more frequent and severer recently, fueled by rapid advancement of science and technology. One might say that the simplest way of resolving these conflicts would be to consider it as a matter of choice. Yet, we cannot take such an extreme argument as a generalized principle when we develop regulation to safely promote science and technology innovation, as the types of this kind of conflicts are very diverse. Rather, a guideline would be needed to determine factors to be considered in deciding types and scopes of regulations for science and technology innovation, and the way of comparing and balancing any competing interests. This would require, first, the categorization of the cases of those conflicts according to the structures and the natures of the interests causing such conflicts, and, second, the examination of factors to be considered and how to consider or balance such factors to resolve the conflicts. The cases of the conflicts between innovation of science and technology and regulation can be broadly divided into three types. The first type is a conflict between conventional businesses and new businesses which use new technology. Most of tensions and conflicts between innovation of science and technology and regulations are included to this type. The second type is a conflict between use of new technology and constitutional rights. Healthcare, big data analysis and IoT-related industries which are conflicted with the privacy right represent this type. What matters in this type is the nature and the contents of related rights and how we should adjust the relations between related multiple public interests and private interests. The third type is a conflict between use of new science and technology and regulations at the level of conflicts of social values or ideologies, which is beyond the conflict of personal interests. The key challenge of the above two types of conflicts is how to adjust the actual rights, as established legal rights are conflicted. However, as the third type of conflicts occurs amid formation of the new value system, how to develop the procedure and the process to reach a new social consensus would matter, instead of adjustment of actual rights. Safety and risks cannot be explained using the binary notation. Guaranteeing safety is a matter of how safe it is, and therefore we must answer to the question, “how safe it should be,” which can be rephrased as “what is the scope of risks allowable.” Here we need judgment based on the provided as the basis to determine how to control risks (the ex-ante regulation system Vs. the ex-post regulation system). We should consider the scope of benefits from taking the risks as well as the type and the nature of damages, the scope of damages and the possibility of damages as important factors. Norms are like frameworks embracing the future, but we cannot predict and define every potential scenario of the future due to our limited recognition. Accordingly, exceptions which lawmakers fail to predict at point of lawmaking must occur, and applying existing laws is not aligned with the purpose of lawmaking or the concept of justice in this case. The system for equity of regulation enables flexibility of regulations in this case. We should also consider the process. This is a matter of democratic governance in the society faced with new technology, and a matter related to distributive justice among generations and classes in terms of distribution of risks. We should decide who will determine this under which procedure. We should allow diverse actors to participate in this process so as to enable the civil society as well as stakeholders of related industries and experts to participate in this process. Related government organizations should participate in this process. We have made diverse efforts to prevent application of existing regulations to a new act causing development of a new market or increased benefits of consumers through innovation of science and technology. The so-called new technology suitability certification system was adopted under the Industrial Convergence Promotion Act. The quick procedure and the temporary approval system were adopted under the Special Act on ICT. These efforts to improve institutions are based on the principle of negative regulation, approval of new technology for safety and remedy of damages through compensation and the regulation system enabling flexible responses to advancements of technology. These legislative efforts intend to facilitate innovation of science and technology by promptly and actively embracing new technology while securing basic safety and preventing consumer damages. Advancements of science and technology have always conflicted with regulations. However, laws should induce and promote new technology while controlling risks, and laws should not hinder innovation of science and technology in the modern society. In order to properly embracing benefits of advancements of science and technology and properly controlling risks involved, the regulation system should be structured so that it can properly respond to technological advancements. To this end, regulation authorities should have proper resources, including professionals and budgets, and be legislatively empowered. These activities should be made in a dynamic market environment.