A legal study on the internet network from the viewpoint of public law - regarding network neutrality - (인터넷 망에 대한 공법적 고찰 - 망 중립성과 관련하여 -)

KANG, HYUN HO (강현호)

A legal study on the internet network from the viewpoint of public law - regarding network neutrality -

Public Land Law Review
Abbr : KPLLR
2015, 71(), pp.267-295
Publisher : Korean Public Land Law Association
Research Area : Social Science > Law

KANG, HYUN HO ¹

¹성균관대학교

Accredited

ABSTRACT

We are now living in a world, in which it is very difficult to live without internet access, and in this information society internet network has become the core infrastructure. The Internet network performs the functions necessary to guarantee the basic human rights and life necessities to the internet users. The problem lies that the conflict among the people concerned on internet network such as the ISP, ICP and other network users increases consistently, because the traffic of the internet network is increasing and the maintenance fee and management cost are also exploding. From the viewpoint of public law the internet network and its traffic has closely related to the fundamental human rights of the users, even if the installation and management of the internet network are performed by the private corporation. The internet network can be characterized as a governmental property. The problem of the internet network neutrality, which is related to access or usage of the internet network, should be distinguished from the problem of the distribution or control of the internet network traffic. Since the installation and management of the internet network is the public service, and therefore the principles of the public service such as the principle of equality, the principle of continuity and the principle of adaptation will be applied to them. From the aspects of public service regarding installation and management of the internet network and under the premise that it costs in order to increase the internet network traffic, it should be possible to handle differently within a reasonable range those who use the internet network. ISP and ICP which provide the end users with a variety of information function as private corporation loaded with a public service, and therefore they are subject to the public law directly. The internet network is limited, therefore the fair relationship between the network usage and its cost should be established, so that the problem of the tragedy of the commons may not happen. Considering the enactment of laws in Korea regarding especially the important Electric Communication Business Law, the installation and management of the internet network are defined as public service, and our laws are not oriented to the network neutrality in the absolute meaning, but to the network neutrality in the relative meaning through disclosure of information, transparent network management and guarantee of appropriate quality of the internet network.

KEYWORDS

internet network, Internetnetz, network neutrality, Netzneutralität, viewpoint of public law, Aus der Sicht des öffentlichen Rechts, public service, öffentlicher Dienst, human rights on information, governmental property, öffentliche Sachen

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