인터넷기반서비스발전기금의 헌법적 문제점

Abstract

This government is preparing a bill of ‘Framework Act on Internet-based Service Business’(hereinafter ‘the bill’) from the year 2009. The bill contains an article about fund for development of Internet-based service(hereinafter ‘the fund’). According to this article,the fund will be composed of contribution by Internet-based service business operators mainly. This study analyzes the fund and contribution by Internet-based service business operators from a constitutional point of view. I think that the fund and contribution by Internet-based service business operators are unconstitutional as follows. Firstly, the fund and contribution by Internet-based service business operators violate rule of law, because they lack some clear legal grounds required by the principles from rule of law Secondly, the fund and contribution by Internet-based service business operators lacks justifying rationales required by the principle of so-called ‘Sonderabgabe’, which is originated from Germany’s Federal Constitutional Court. The justifying rationales required by the principle of ‘Sonderabgabe’ are composed of ‘homogeneity of the contributing group’(Gruppenhomogenität), ‘objective proximity’(Sachnähe), ‘responsibility of the contributing group’(Gruppenverantwortung), ‘usefulness for the contributing group’ (Gruppennützigkeit). The Korean Constitutional Court incorporates and applies these principle and rationales for reviewing of the constitutionality of funds and compulsory contributions in many cases. Especially, the range of Internet-based service business operators which compulsory contribution are imposed is so broad, and the logical correlation between the fund and Internet-based service business operators is not clear. Because the fund and contribution by Internet-based service business operators lacks all justifying rationales, they violate the principle of so-called ‘Sonderabgabe’.