ScholarWorks@숙명여자대학교

초록

In 2018, the Constitutional Court made a decision confirming its unconstitutionality to the Internet packet wiretapping. The key to the unconstitutionality of Internet packet wiretapping is that despite the risk of violating basic rights, there is no procedure in place to control them. But the Constitutional Court did not determine whether it violated Principle of Due Process of Law. Today, the Due Process of Law is an important principle that plays the role of power control in the area of public law. This article examined whether Internet packet wiretapping was unconstitutional due to violation of Due Process of Law, not a proportional review. It is common to see that our current constitution accepted the Principle of Due Process of Law of the United States through the 1987 constitutional amendment. The Constitutional Court seems to interpret the law as an independent standard of unconstitutional review, interpreting it as a general constitutional principle, such as a provision Due Process of Law in Anglo-American law, rather than as a special request of Art. 12 the Constitution. However, the Constitutional Court, along with other unconstitutional review standards such as the proportional review, has not made clear what the legal principles are. Art. 12 of the Constitution is not a basis for general Due Process of Law, but an individual regulation that guarantees the freedom of the body in criminal proceedings such as arrest, confinement or seizure and search, which is believed to be a faithful interpretation of the constitutional regulations. By introducing the theory of protection of basic rights through German organizations and procedures, it will be the starting point for the establishment of a basic rights-friendly system (procedures and organizations) as a criterion for the review of proportionality.

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