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디지털 교역 규범 도입의 법적 쟁점
개인정보 '보호'와 '활용'간 균형점 모색을 중심으로

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dc.contributor.advisor이재민-
dc.contributor.author양지선-
dc.date.accessioned2020-05-07T04:18:13Z-
dc.date.available2020-05-07T04:18:13Z-
dc.date.issued2020-
dc.identifier.other000000159848-
dc.identifier.urihttp://dcollection.snu.ac.kr/common/orgView/000000159848ko_KR
dc.description학위논문(석사)--서울대학교 대학원 :법과대학 법학과,2020. 2. 이재민.-
dc.description.abstract4차 산업혁명 시대에 데이터의 가공은 신기술의 원동력이다. 데이터의 가공에 따라 창출되는 경제적 부가가치 창출로 인간의 삶이 획기적으로 변하고 있다. 하지만 디지털 교역 과정에서 개인정보가 침해될 경우 금전적 손실이 클 뿐 아니라 유출된 개인의 인격적 침해 우려가 있는 점, 유출된 데이터는 돌이키기가 어려워 그 손해의 회복을 기대하기 어려우며, 새로운 형태로 가공된 데이터가 어떤 방식으로 사용될지 예측이 불가하여 개인정보에 대한 규제가 어떻게 이루어질 것인지는 데이터의 활용만큼 중요한 문제이다. 현행 WTO 체제 하에서 GATS 제14조 예외의 인정을 엄격하게 하고 있어 개인정보보호를 이유로 한 데이터 이전 제한이 인정되지 않을 가능성이 있다. 이와 관련하여 GATS 제14조를 다룬 US-Gambling 사건에서는 그 기준이 되는 필요성의 요건에 대하여 적절한 기준을 제시하지 못하였다는 비판을 사고 있다. 국가 들은 예상 가능한 무역 분쟁을 막기 위해 다자간 무역 협정을 체결하기에 이르렀고, 미국과 유럽의 경우 개인정보보호를 이유로 한 데이터 국외 이전 법리 간의 차이를 프라이버시 쉴드를 시행하는 등 발 빠르게 대응하고 있다. 그럼에도 협정을 체결하지 않은 국가에서는 유럽 국가로의 데이터 국외 이전의 경우 적절성 테스트 통과 등을 거칠 것 등을 요건으로 하는 등 그 요건이 까다로워져서 이는 또 다른 무역분쟁을 초래할 수 있다. 즉, 데이터 국외이전이 협정국 간에만 이루어지지 않는다는 것은 주지해야 할 사실이다. 따라서 개인정보의 활용과 보호 간 균형을 위한 기준점 마련을 위해서는 GATS 제14조의 필요성에 대한 법리 해석에 대한 기준을 세부적으로 정하면서 개인정보보호 규정 추가를 고려하는 것이 필요하다. 이 때 개인정보보호와 통상은 데이터의 국외이전과 밀접한 관련을 갖는다는 점에서 디지털 교역과 관련하여 주목 받고 있는 빅데이터, 데이터 로컬라이제이션, 민감 정보와 같은 이슈 3가지를 중점적으로 검토해보고자 한다.-
dc.description.abstractData is the driving force behind emerging technologies in the 4th industrial revolution. The added economic value created by data processing is gradually becoming larger. The WTO norms are not specific and restricted regarding the protection of personal data, and there is a confusing situation since each country holds privacy norms applied differently. To address this confusion, the members of the WTO are trying to negotiate with each other to develop digital trade norms, such as privacy protection. In particular, there is a risk of personality infringement as the consequence of the leaked individual data. However, excessive scale of restrictions will undermine the benefits that can be obtained through the use of big data, and will violate the UR agreement, which ultimately aims at expanding markets in each country. Nevertheless, under the current WTO regime, the GATS XIV exception is strictly enforced, resulting in the denial of data transfer on the grounds of privacy protection. There is no standard on what level of personal information protection law is allowed in the 'public order' under Article 14 of GATS. Thus, differences in data transfer laws may lead to further trade disputes.
It is therefore necessary to consider the additional measureson the protection of privacy, setting the necessary criteria in Article 14 of GATS. In order to prepare the detailed criteria for the necessity overview, not only the basic principles of privacy protection set out by APEC need to be taken into account, but also the comprehensiveness of personal information transfer criteria in 'appropriateness', which enables the data transfer in the EU. Indeed for this case, technology neutrality and transparency must be observed to ensure fair standards. In addition, the domestic law on the privacy protection of major countries shows that most countries strictly regulate to protect personal information in the case of the exposure of sensitive information. Therefore, the addition of protection provisions for sensitive information would be a good alternative for consensus among WTO members. Above all, data should be moved in a way that enables global trade and contribute to the economic globalization, and in this process, it is important to find a balance with privacy.
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dc.description.tableofcontents제1장 서론 ·················································································································································· 1
제1절 연구의 배경과 목적 ····························································································································· 3
1. 연구의 배경 ············································································································································· 4
2. 연구의 목적 ············································································································································· 7
제2절 연구의 범위와 논문의 구성 ·················································································································· 10
1. 연구의 범위·············································································································································· 10
2. 논문의 구성 ············································································································································· 10
제2장 개인정보와 디지털 교역의 관계 ············································································································ 13
제1절 기술의 발전과 개인정보보호의 중요성··································································································· 13
1. 4차 산업혁명 시대의 도래 ························································································································· 14
2. 개인의 역할 확장 ······································································································································ 15
3. 개인정보의 침해 위험 증가 ························································································································ 15
4. 데이터의 가치 확대 ··································································································································· 16
5. 개인정보보호와 활용 간 균형점 필요 ·········································································································· 17
제2절 WTO의 개인정보보호를 위한 노력········································································································ 18
1. 전자상거래에 관한 각료 선언 ····················································································································· 18
2. 전자상거래 작업계획 ································································································································· 20
3. ITA 협정 ··················································································································································· 21
4. TiSA 협정 ················································································································································· 22
5. 개인정보보호 규범 마련을 위한 WTO의 노력 ······························································································· 24
제3절 개인정보보호와 프라이버시의 관련········································································································· 25
1. 프라이버시와 개인정보보호 ························································································································ 26
2. 개인정보보호와 프라이버시의 차이 ·············································································································· 27
제4절 개인정보보호 통상협정 동향··················································································································· 28
1. FTA에서의 개인정보보호 ···························································································································· 29
2. 프라이버시 쉴드 협약의 등장······················································································································· 32
3. CPTPP 협정 ·············································································································································· 36
4. USMCA 협정 ············································································································································ 38
5. 데이터 로컬라이제이션의 등장 ···················································································································· 39
제5절 국제기구의 개인정보보호 가이드라인 ····································································································· 41
1. APEC 프라이버시 가이드라인 ····················································································································· 41
2. 마드리드 결의 ············································································································································ 43
3. UN에서의 논의 ·········································································································································· 44
4. OECD 가이드라인 ····································································································································· 45
제6절 개인정보보호와 활용 간 보편적인 통상법적 기준 마련·············································································· 47
제3장 개인정보보호와 WTO 통상 규범 ············································································································ 49
제1절 개인정보보호와 GATS ·························································································································· 49
1. GATS 제1원칙 : 최혜국대우 ······················································································································· 50
2. GATS 제2원칙 : 내국민대우 ······················································································································· 51
3. 전자적으로 전송되는 데이터의 분류 ············································································································ 52
4. GATS 제6조의 국내규제·······························································································································53
제2절 GATS 제14조의 일반적 예···················································································································· 54
1. 수정이 필요하다는 입장 ····························································································································· 57
2. 현재 규정만으로 충분하다는 입장 ··············································································································· 57
제3절 GATS 제14조 관련 사례 ······················································································································· 58
1. US-Gambling 사건 ··································································································································· 59
2. China-Audiovisual 사건 ···························································································································· 64
제4절 필요성의 법리 분석 ······························································································································· 67
1. 정책 목적의 중요성 ···································································································································· 68
2. 통상에 대한 목적과 효과의 기여 ·················································································································· 69
3. 대안적 조치의 마련 ···································································································································· 69
4. 두문(Chapeau) 고려 ································································································································· 70
제5절 프라이버시를 고려한 필요성 검토 ·········································································································· 70
1. 개인정보보호의 특징을 고려 ······················································································································· 70
2. 국제 가이드라인을 고려한 심사 기준 필요 ···································································································· 72
3. 기술의 발전과 통상 분쟁 해결 ····················································································································· 73
제4장 주요국 개인정보보호법의 비교법적 검토 ································································································· 74
제1절 개인정보보호법의 주요 특징 ·················································································································· 74
1. 개인정보 개념 범주 ···································································································································· 75
2. 유럽연합과 미국 간 개인정보 범주 비교 ······································································································· 76
3. 개인정보 국외이전의 유형 ·························································································································· 78
제2절 주요국 개인정보보호법제 동향··············································································································· 80
1. 개인정보의 보호를 우위에 두는 입장 ············································································································ 81
2. 개인정보의 활용을 우위에 두는 입·············································································································· 93
제3절 민감정보에 대한 각 국의 입장 ················································································································· 97
제4절 빅데이터와 개인정보 국외이전 ··············································································································· 104
1. 빅데이터와 개인정보 관계 ·························································································································· 105
2. EU의 빅데이터 관련 법 ······························································································································ 106
3. 일본의 빅데이터 관련 법 ···························································································································· 107
제5절 클라우드 컴퓨팅과 개인정보 국외이전 ··································································································· 108
제6절 개인정보보호 통상 규범 수립 시 고려사항 ······························································································ 110
1. 주요국 국내법 특징 고려 ···························································································································· 110
2. 필요성의 법리와 GDPR 적정성 평가 ··········································································································· 111
3. 식별 불가한 개인정보 별도 취급·················································································································· 112
제5장 개인정보 활용과 보호 간 균형점 제안····································································································114
제1절 GATS 제14조의 수정 해석···················································································································· 115
1. 개인정보보호 법리를 고려한 수평적 해석 ···································································································· 116
2. 국제기구 개인정보 가이드라인 활용 ············································································································ 117
3. GDPR의 적정성을 필요성 판단에 ············································································································· 125
제2절 법적 기준으로 민감정보 조문 추가 ······································································································· 128
1. 국내법 특징을 고려한 개인정보보호 규범 마련······························································································ 128
2. 개인정보 개념 정립 ··································································································································· 129
3. 민감정보에 대한 회원국 의견 합·················································································································· 130
4. 비차별대우 원칙 해소 방안으로 활용 ············································································································ 133
제3절 데이터 활용에 개인정보보호와의 균형 모색······························································································ 134
1. 비식별화된 정보의 활용 허용························································································································ 135
2. 정보 주체의 권한 강화·································································································································· 136
3. 데이터 로컬라이제이션 기준 마련 ················································································································· 138
4. 기술 중립성 및 투명성 확보 방안··················································································································· 140
제6장 결론······················································································································································ 142
참고자료 ·························································································································································146
Abstract ························································································································································162
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dc.language.isokor-
dc.publisher서울대학교 대학원-
dc.subject.ddc340-
dc.title디지털 교역 규범 도입의 법적 쟁점-
dc.typeThesis-
dc.typeDissertation-
dc.contributor.AlternativeAuthorYang , Jisun-
dc.contributor.department법과대학 법학과-
dc.description.degreeMaster-
dc.date.awarded2020-02-
dc.title.subtitle개인정보 '보호'와 '활용'간 균형점 모색을 중심으로-
dc.contributor.major국제법-
dc.identifier.uciI804:11032-000000159848-
dc.identifier.holdings000000000042▲000000000044▲000000159848▲-
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