한국 개인정보보호권의 절대화 현상에 대한 비판 ― 개인정보처리정지권에 대한 해석론을 포함하여 ―

초록

This paper seeks to explore the boundaries and nature of the control that a data subject exercises over their personal data, alongside the legal frameworks that permit data controllers to process such data lawfully. It dissects the constitutional and legislative delineations of an individual's rights in this domain, scrutinizing the extent of these rights and the conditions under which a state authority or private entity may handle the personal information of others. The Constitution serves as the fundamental legal document that delineates the dynamics between state apparatuses and citizens, where the rights enshrined within are primarily exercisable against the state rather than private parties. This distinction upholds that while state bodies are constrained by these constitutional rights, private individuals operate beyond their direct purview, thereby preserving the tenet of private autonomy. It is concerning, however, that there has been a discernible trend over the past decade wherein constitutional rights are increasingly and inappropriately invoked within private law jurisprudence and civil adjudications—an issue I term “fundamental rights surplus.” This article contends that there is a critical need to differentiate between the constitutional right of informational self-determination and the statutory right to personal data protection (as prescribed by the Personal Data Protection Act). It is imperative to critically analyze the excessive prioritization of data protection rights—including correction, deletion, and processing cessation—through the lens of comparative law. This excessive prioritization springs from a fundamental misapprehension: the erroneous belief that personal data deserves the same sanctity as a private secret. Private secrets, which are under the sole domain of the data subject, rightfully warrant an unbreachable control over their disclosure. Contrastingly, personal data are often integral to and exchanged within commercial and social interactions, eluding the data subject's exclusive control. While the law must safeguard private secrets to protect an individual’s personal sphere, personal data warrant a different approach. Excessively elevating the protection of personal data above other constitutional imperatives—like freedom of expression, the public's right to know, and the freedoms of religion and enterprise—can lead to an imbalance detrimental to these other fundamental values. The prevailing interpretation of the Korean Personal Data Protection Act as enshrining absolute protection rights fails to acknowledge this complex interplay of constitutional interests. The ensuing discussion unfolds as follows: Chapter 2 (II) addresses and seeks to rectify prevalent misconceptions about the right to personal data self-determination in Korean society. Chapter 3 (III) undertakes a comparative examination of personal data protection legislations in the European Union (EU) and Japan, scrutinizing the asserted absoluteness of the current Korean data protection rights. Chapter 4 (IV) then analytically assesses the implications of this absolutism, with a particular focus on the right to halt personal data processing. Lastly, Chapter 5 (V) evaluates the legitimacy of a data subject's claim to suspend the processing of pseudonymized data.

키워드