행정법적 관점에서 본 한국형 규제샌드박스 제도의 문제

Abstract

Innovation often conflicts with regulation. Regulatory lag arises from these conflicts. These conflicts are resolved as innovations are incrementally accepted by regulations. However, the digitally-enabled innovation that causes rapid change requires an immediate regulatory response. A new regulatory strategy called as regulatory sandbox has emerged as a transition mechanism that can mediate such rapid innovation. In January 2019, Korea introduced the Korean Regulatory Sandbox(hier after “KRS”). Regulatory sandbox is a safe harbor where consumers can be adequately protected while experimenting with innovative products, services, business models and transaction delivery. Regulatory sandbox is areas in which to trial innovation and regulation. The nature of regulatory sandbox can be seen as an experimental clause that provides a legal stepping stone to enable innovative new technology services while appropriately controlling risks. From an administrative law point of view, Regulatory Fast Track, which constitutes regulatory sandbox, has the nature of a commitment under administrative law equivalent to issuing a Non-Action Letter. Provisional Approval(hier after “PA”) and Regulatory Exceptions for Demonstration(hier after “RED”) allow for regulatory exemption, so broad discretion can be granted to administrative agencies. KRS has the following problems. First, KRS is spread by ministries in consideration of expertise in each field. PA and RED, which are practically the same, have different legal effects. Second, Innovation was actually delayed due to the absence of a deadline for clearing KRS’s procedures. Third, the market launch of new technology services was delayed in a situation where the interests and positions of each ministry conflicted in the stage of PA or RED, or in the process of post-legislative revision. Fourth, there are cases where an experiment that meets the purpose of the regulatory sandbox cannot be properly executed due to excessive additional clauses. In order to maintain current KRS for each ministry, it is necessary to unify at least the legal requirements and effects of regulatory sandboxes by sector. Although PA and RED are integrated, it is sufficient to reflect the current functions related to safety verification in the design process of experimental conditions. The deadline for KRS needs to be determined within 30 days of application prescribed by the Financial Innovation Act. In the process of regulatory sandboxes, it is important to make substantial decisions by implementing all procedures set by the current system. Ultimately, it is desirable to integrate the committee for deliberation and resolution into the Office for Government Policy Coordination. Excessive additional clauses need to be comprehensively coordinated to the principle of proportionality in consideration of the purpose of the regulatory sandbox and its concerns.