사이버공간의 규제문제와 사회규범에 대한 법철학적 분석
Legal-Philosophical Analysis of Regulation and Social Norms in Cyberspace
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Abstract
The regulative structure of cyberspace is currently to the process which comes to make. For the formation of ideal regulative structure, discussion about cybernorms will be necessary when we consider that the regulative structure is being formed. There was liberalism which refuses the intervention of the nation about regulation of cyberspace. This liberalism, however, disregarded that the basic operation of law in cyberspace be necessary and neglected the legal solution of jurisdiction and conflict of law. Liberalism underestimated the representative democracy and the law which was enacted by the representative congress. Liberalism disregarded that the decision of people in cyberspace could be deteriorated same as in real space. In opposition, there was non-discriminative attention about the regulation of cyberspace and real space. The non-discriminative attention disregarded the regulative structure of cyberspace which had the substantive difference from real space. They, however, cannot explain intervention of new regulative element, namely ‘code’. They neglected the concepts and boundaries of rights which was closely related to information. Although the cyberspace is not the independent place from real space, special features of cyberspace and cybernorms should not be disregarded. Self-regulation based only on social norms is not ideal. Informal social norms always have the problems of information delay, strategic conduct, conflict of moral norm and profit norm, distorted preference and negative external effect. For the mitigation of the problems of social norms, it is necessary to regulate social norms by law. Law can regulate social norms directly to prohibit the action of social norms or indirectly to change the social meaning. To make an efficient law, sufficient understanding and consideration of social norms are important. Specially, it is more important in cyberspace in which new law and regulative structure are required. The idea of information society can be founded from the features of cybernorms. The consideration and understanding of cybernorms are important for the law to be accepted and conformed efficiently. Cyberspace can be more developed to an ideal space through the recognition and respect to cybernorms.
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