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도청·감청에 대한 법적 소고 : 이익형량 추정에 따른 법적 대응방안을 중심으로
유의선 梨花女子大學校 社會科學大學 社會科學硏究所 1999 사회과학연구논총 Vol.3 No.-
This paper attempts to analyze the legal aspect of wiretapping or eavesdropping in the information society. This is because that number of wiretapping drastically increases these days and as a result of it, even ordinary people are seriously concerned about being wiretapped when they communicate each other through the telephone. Therefore it is not strange to say that need for systematic study about the social phenomenon has been raised from all walks of life. To this end, a perspective which combines social and legal approach of wiretapping needs to be adopted here to compensate for each approach’s pitfalls. Based on the rationale mentioned above, a syllogism model (symptom-diagnosis- treatment) has been developed implicitly for this study. This paper firstly shows how many cases of illegal wiretapping have been reported during the past year. A statistical report indicates that the number of wiretapping conducted by public investigators have been drastically increased last year. Especially investigating the number of telephone calls or duration of talking hours over the telephone without officially written permission seems to threaten individual privacy substantially. Secondly, various causes for the frequent wiretapping have been examined in this study as a pre-step before suggesting policy measurements. First of all, lack of check and balance system in society is mentioned here as a reason for the increasing use of illegal activity. Loose implementation of Telecommunications Secrecy Protection Law is also considered as an impetus for the abuse/misuse of wiretapping. This is basically due to the loophole of the law stemming from the ambiguous terminologies used in the relevant legal code. A lack of ethics of investigators and cooperators for the possible threat of the abused/misused wiretapping on individual privacy is regarded too for the increasing use of illegal activity. Various legal measures have been suggested to prevent the abuse/misuse of wiretapping on the basis of ad hoc balancing test. Ad hoc balancing test implies that legal interests between the efficient use of legal wiretapping against crime and protection of personal privacy against eavesdropping should be carefully coordinated. Specifically legalization of integrated human right law rather than keeping the currently scattered human-right related law is strongly recommended for the comprehensive protection of personal right. Strict processes for allowing wiretapping is also required in order to minimize the side effect of wiretapping, though it takes much time to legalize. Especially it is argued that imminent wiretapping should be strictly implemented under appropriate legal conditions. It is also recommended that nature of crime as well as its seriousness of harm to the human right sincerely be considered to evaluate the characteristics of the legal conditions.