개인정보 보호법의 적용 범위에 관한 연구

Abstract

Since the 1980s, research related to the Personal Information Protection Act(hereinafter ‘PIPA’) has been actively conducted in various academic fields such as law, public administration, policy studies, and engineering. However, It is rarely found studies focusing on the scope of application of the PIPA. This paper tried to review the scope of application of the PIPA from the hum an and geographical perspective and to suggest reasonable interpretation and legislation methodology of it. The review results are as follows. 1) Personal scope of application: Regardless of domestic or foreign nationals, if they meet the definitions under the PIPA, they are the subject of the ‘data subject’ and the ‘personal information controller’. If the data subject is a minor, even if he or she is 14 years of age or older, the provisions of the Civil Act for persons with lim ited capacity apply, so the consent of a legal representative is necessary to exercise the right to consent. The concept of ‘a person who has processed or processed personal information’ (PIPA article 59) should be interpreted as ‘current personal information controller or former personal information controller’. 2) Geographical scope of application: In the case of processing of personal information within the region, the PIPA applies not only to domestic personal information controllers but also to foreign ones under the principle of territoriality. However, in order to secure the effectiveness of actual enforcement, the level of regulation under the PIPA should be recognized as reasonable and universally valid in the majority of countries or international cooperatives. In the case of offshore processing of personal information, if there is a law in that country, the law of that country is applied to the processing of personal information offshore, unless there is a special circumstance that it is unreasonable to apply the law. It is reasonable to apply PIPA to the processing of personal information offshore by foreign personal information controllers only if the effect is domestic according to the theory of effectiveness. The fundamental reason for this rather complicated result is that the issue of the scope of application of the PIPA is entirely left to legal interpretation methodology. In terms of ensuring legal stability and predictability of offenders and securing objectivity and transparency in law enforcement, the issue of the scope of application of PIPA needs to be resolved through legislative theory rather than interpretation theory