Cyber상의 위험과 재난으로부터 자유와 안전을 보장할 제어국가의 법적 규제

Abstract

The 4th industrial revolution is changing the way of life of individuals, the shape of freedom, and the structure of the market and society, which were identified in the national law, constitution, and administrative law. Internet of Things, big data, artificial intelligence, autonomous vehicle, drones, smart cities, smart factories, Fintech, cloud computing, 5G, etc. are making the cyber world and the real world work through various connections and convergence. Therefore, cyber risks and disasters seriously and continuously bring new violations of fundamental rights and market disturbances in a hyper-connected society. Technologies such as cyber hacking, which disrupt the market and infringe on citizens' fundamental rights, continue to develop. The enemies of freedom and society who carry out cyber attacks are wide and diverse in the form, scope, and aspect of the violation to the extent that the state or local governments cannot easily respond and overcome. Cyber dangers and disasters are instilling a common and widespread anxiety among citizens. This threatens freedom, which is the premise of a civil rule of law state. It also infringes on credibility, which is the premise of a communicative civil society. It undermines safety, which is the condition for the fusion of science and the humanities. The list of fundamental rights infringed by this includes the general freedom of action, freedom of expression, right to privacy and self-determination of personal information, basic IT rights, freedom and safety of life and body, freedom of residence, freedom of communication, property rights, and the right to be rescued from criminal damage, the right to claim protection from risks and disasters. Unlike fundamental rights in the offline society, the list of basic rights in cyberspace such as housing and freedom of telecommunication is not strictly separated but has a complex and overlapping nature. In this article, the author subdivides the basic IT rights that have recently been recognized by the German Federal Constitutional Court and presents them as the right to demand confidentiality, the right to demand integrity, and the right to demand availability. The subject of national laws that will guarantee freedom and safety against cyber risks and disasters should no longer be unilaterally limited to the state. Local governments as well as markets in which businesses and individuals participate should be included. This is because reliance on the conventional liberal view of the state, an social state view, and the privatized state view will lead to market failure and government failure again. Now, the state, local governments, and the market should work together to share responsibility for cyber risks and disasters and cooperate. The State shall ensure that it fulfills its guarantee responsibilities based on the guarantee state(Gewährleistungsstaat) view. The state should respect the autonomy of the market from the point of view of the Steering State(Steuerungsstaat) and, can only exceptionally, closely regulate the market to intervene when it cannot solve the problem on its own. When the market goes well autonomously, Government should step back again. As an Active State, the Government should smartly carry out deregulation and soft regulation in parallel with existing commanding regulations. The existing traditional commanding regulations, such as various administrative actions and administrative penalties, should be reduced, and the legal basis for those should be clearly placed in the laws and regulations rather than relying on guidelines or administrative inner rules. According to the public law, the proportion of non-powerful means such as contracts and administrative guidance, as well as new means of securing effectiveness such as charges and the publication of lists (Naming and Shaming) should be increased.