위임입법을 통한 ICT 규제의 문제점 및 개선방안

Article 40 of the Korean Constitution stipulates that the National Assembly has legislative power. Article 75 of the Korean Constitution stipulates that the Presidential Decree may issue a Presidential Decree on matters delegated by law and matters necessary to enforce the law, and Article 95 of the Korean Constitution stipulates that the administration may exercise legislative powers delegated by the legislator.
Restrictions on the rights and obligations of the people are the basis of separation of powers that Congress sets as laws. Nevertheless, due to the complexity of social phenomena and the expertise of administration, details of laws and regulations were delegated to administrative authority to supplement the rigidity of laws that the law could not keep up with changes in society. However, despite administrative legislation having lower democratic legitimacy than legislation, it is not desirable today that administrative legislation has become more influential on the people as it excessively directly binds the daily lives of the people than the law.
The Korean Constitutional Court should also confirm that the principle of legal reservation today is not sufficient simply to be based on law, but to require legislators themselves to decide on the essential matters of basic rights.
The statutes about ICT policy were not only frequently enacted and revised due to the characteristics of professional and technical matters, relevance to various administrative ministries, and rapid environmental changes, but also were difficult to systematically overhaul related laws due to frequent reorganization. Recently, the promotion of laws to expand the jurisdiction of related ministries such as the Ministry of Science and ICT, the Korea Communications Commission, and the Fair Trade Commission has also become a sensitive issue. In this environment, the law may be procedurally controlled by the Korean National Assembly and its validity may be verified to some extent in the legislative process, but administrative legislation has limitations that it is not. In this situation, the indiscriminate creation of legal orders as administrative legislation leads to unfair restrictions on the rights of the people and imposition of obligations, and secretly hinders the basic principles of guaranteeing basic rights and separation of powers under the Constitution. Therefore, this paper reviews the limitations and basic principles of delegated legislation, analyzes actual cases in the ICT field of shadow regulation in the form of delegated legislation despite such principles, and seeks control measures to prevent delegated legislation from turning into shadow regulation means.