전파법상의 전파의 개념과 법적성질

Abstract

In the era of mobile communication, spectrum contributes to economic growth, and promotes ubiquitous information society. Moreover, the efficient allocation and fair dealing of radio spectrum are 'key resource' for the country. While radio frequency is very important resource for Information Technology,it is a limited resource to use. So, the problem of legal systems that control and rule the efficient radio frequency is suggested. In reference to reforming the legal system of radio frequency usage, we need to examine the legal argument. In the previous years, radio waves have been considered to be public property. However, the concept should be changed with a new or developing approach. In some views, radio waves belong to government property because government controls the waves. Apart from these views, a new approach that the waves are used with fair and efficient purpose should be adopted in that radio waves are civil property. The radio waves are basically considered to be an object because they can be managed based on Korean Civil Code. However, the view that the waves are public property is not appropriate for the right of exclusive use. It is reasonable that the use of radio waves should be applicable to patent as a set-up. In the approach of the argument, we do not need to follow national property theory or public property theory as a theoretical justification of the government regulation. The theories are based on the Article 120 of the Korean Constitution, saying that national forces are able to employ for economic purpose. The resource of radio wave is finite or limited. So due to its scarcity, the main task of the resource has been the effective and fair distribution. Because of the limitation of frequency management system, the system is controled by command or ruled by the government. On the other hand, the new paradigm for marketbased frequency management system is adopted. The Amendment of Radio Waves Act which permitted frequency actions system was at the National Assembly in January 2009. The spectrum allocation was to be effected by the frequency actions system. The administration policy based on free market is expected to have somewhat limitations for a time being. However, breaking out of the public property and accepting new legal theory towards the radio waves are strongly demanded.