정보통신 진흥 및 융합 활성화 등에 관한 특별법(소위 ‘ICT 특별법’)상 신속처리절차 및 임시허가제도의 법적 쟁점

Abstract

Generally, it’s a duty for legislator to set out the definitive legal framework for the use of a new technology. However, it is not so easy to anticipate every details of social advantages and disadvantages resulted from the technical development because of the uncertainty of complex technical developments. That’s the main reason that it comes to a regulatory deficit. In this circumstances, it’s also hard for the inventor of the new technology to decide whether the use of the new technology is legally permitted or prohibited. So, the regulatory deficit may lead to a productivity lag in ICT branch. In the light of the economic importance of ICT branch, we need to have flexible legal means supplementing the traditional way of a legislation to fill out the gap between dynamics of technological developments and the statics of the law. Here comes to a new regulatory framework, so called acceleration process in the Act for the promotion and convergence of ICT. In this process, a inventor of a new ICT technology have a petition to promote to be decided whether the new technology is legally launched in the ICT market or not. If needed, Minister of Science, ICT and Future Planning(MSIP) can introduce the another additional process, i.e. provisional approval, beside the acceleration process to make a temporal rule to gather useful informations for establishing the criteria for commercialization of that technology and to test this new ICT technology in terms of harmful risk to competitors and consumers. In the end of these processes, with the results of that experiment, legislator can make better regulations for the new ICT technology. There must be several legal issues on the acceleration process and the provisional approval in practice, because this kind of legal institutions are relatively newly introduced and hardly discussed among the legal scholars. In this paper, the author have focused on some nominees to be in a controversy on the way of interpreting and applying in practice.