헌법 제17조 사생활의 비밀과 자유에 대한 소고

A Study on Privacy Right of Article 17 of the Korean Constitution.

The threats to individuals’ privacy is growing up fast with the development of information society. In these circumstances setting up an adequate interpretation of Article 17 of the Korean Constitution has significant meaning . Also the recent judgements of the Constitutional Court of Korea about Article 17 adds significance to this theme. A lot of contents may be dealt with regarding the privacy right - such as the problem of CCTV, privacy in cyberspace and so on, but this study limits it’s scope to the definition, legal character, and contents of privacy right of Article 17. There are some confronting theories in regard to the definition and contents of privacy right and these are basically about whether to include the right of self-control over personal information (Personal Information Control Right) in privacy right; majority of jurists support the inclusion but the position of the Constitutional Court of Korea is not clear on this matter. My opinion is that Personal Information Control Right is partially included in the meaning of Article 17 of the Korean Constitution. The theory of majority underestimates the comprehensive nature of this right and the theory of minority makes the meaning and scope of Article 17 too narrow. The right of self-control over personal information has the aspects of guaranteeing the freedom of personality and controlling the (governmental) powers as a political right at the same time. It needs to be said that Article 17 includes protection of the private aspect of the right of self-control over personal information to guarantee the freedom of personality. This study also covers the problem with the concept of ‘the right to be let alone’ and reviews the relationship between the privacy right and the right of personality, freedom of residence and so forth. And the legal interest protected by Article 17 lies in building up the ground for fostering personality and constructing personal relationship between members of society. Regarding the contents of Article 17, the difficulty to determine the boundary of pirvate area is pointed out and theories in Germany about criteria of deciding the private area are introduced in this study. This study reviews the contents of Article 17 in three parts. Especially it brings the problem of the right of self-control over personal information into focus. In detail, the right of self-determination protects only the private aspect of the right of self-control over personal information and it has it’s function in guaranteeing protection of personality and human dignity and maintaining the basic free and democratic order. Lastly, the foreign legislations on the right of self-control over personal information and the Law of Personal Information Protection by Public Agencies of Korea are briefly introduced.