시정권고의 법적 성질에 관한 연구- 저작권법 제133조의3에 따른 한국저작권보호원의 시정권고를 중심으로 -

To protect the rights of copyright holders, the Copyright Act stipulates that online service providers receive certain orders or recommendations, such as warnings and suspensions, when illegal works are copied or transmitted. According to the Act, administrative actions are classified as either corrective orders issued by the Minister of Culture, Sports and Tourism (Article 133-2) or corrective recommendations issued by the Korea Copyright Protection Agency (Article 133-3). While there is consensus that the Minister of Culture's corrective orders constitute "dispositions" as administrative regulations, the Korea Copyright Protection Agency's "correctiverecommendations" must be considered in light of the ambiguous provisions, operational flexibility, and legislative intent. Despite their legal designation as "recommendations," the KoreaCopyright Protection Agency's corrective recommendations are likely to be interpreted as "dispositions" subject to appeal. This is due to the structure in which noncompliance leads to subsequent corrective orders, as well as the substantial impact these recommendations have on the rights and obligations of the OSP. In particular, the Supreme Court has set a precedent that, when it is unclear whether an administrative agency's action constitutes a "disposition" from the perspective of citizens seeking redress, the likelihood and predictability of the other party with a significant stake in the appeal should be considered in a normative judgment. Considering the substantial impact of corrective recommendations on the business activities and order of copyrighted works of the OSP, the need to guarantee an opportunity to appeal seems particularly significant. This is consistent with recent case law trends that emphasize the practical effectiveness of administrative actions and the need for citizens to seek redress. However, administrative dispositions are "regulations" that restrict citizens' fundamental rights. Therefore, interpreting the Protection Agency's corrective recommendations as "dispositions" and restricting fundamental rights is excessive and unclear in terms of regulatory clarity, procedural legitimacy, and the appropriateness of the regulatory entity. Therefore, legislative supplementation is essential. The current lack of a clear court ruling on the legal nature of the agency's recommendations, coupled with conflicting academic theories, creates legal uncertainty. The confusion and damage caused by these incomplete provisions are the public's sole responsibility. In order to view the Protection Agency's corrective recommendations as "dispositions," the necessity and legitimacy of implementing these recommendations as dispositions must be logically clear, despite the existence of a corrective order from the Minister of Culture, Sports and Tourism. To ensure flexible operation asadministrative guidance, consistent with the initial intention of introduction, we propose the following short-term improvements: First, improve the format of the recommendations. Second, distinguish between the recommendations as administrative dispositions and administrative guidance in the internal regulations. Third, establish the term "caution" as administrative guidance in its original meaning.