디지털 시대 리스크 기반 규제: 정의와 분배, 거버넌스에 관한 공법적 고찰

초록

In 1986, in the first edition of his book Risk Society: Towards a New Modernity, Ulrich Beck noted the proliferation of risk society with industrialization and modernization and pointed out that resolving conflicts over "who defines, how defines, and distributes risk" was an important issue. Accordingly, it was pointed out that risk in a risk society is defined as "unintended and derivative risks" arising from "technological and economic (human choices and decisions)" embodied in "advances in science, technology, and industry" that are not immediately recognizable, and therefore the need for institutional design to manage them is not immediately recognized, even when they are real. Since 2000, Ulrich Beck has argued for a global sociology of risk in a new edition of his book, arguing that risks in the modern world are similar around the world. The sociology of global risk explains that as the scope of risk has expanded due to the development and diffusion of technology and the emergence of global corporations, the scope of risk has expanded to include people around the world, global financial institutions, non-governmental organizations, and multinational corporations, but that there are differences in sensitivity to and response to risk depending on country, region, and culture. The sociological discussion of the emergence and transmission of risk leads to the institutional discussion, which is characterized by a proactive consideration of risk rather than risk prevention. In other words, it is argued that precautionary measures should be taken not only to prevent harm (Gefahr), which is a case where "harm can reasonably be expected to occur" based on the likelihood of infringement of a legal interest and the likelihood of damage, but also in situations where there is a possibility of risk (Risiko), which is a case where there is a likelihood of infringement of a legal interest but not a reasonable expectation that it will occur, by assessing the likelihood of harm. Risk regulation is "the idea of regulating to categorize and manage the stages of uncertain risk" and has emerged in the financial, environmental, food, and legal services sectors. However, after the 2008 financial crisis, criticisms of the failure of risk-based regulation emerged, focusing on the quality of risk assessments and cognitive biases. Suggested alternatives include improving the quality of risk assessment, ensuring transparency, and political support. The UK Financial Conduct Authority has since emphasized the limitations of traditional command-and-control regulation and suggested the need for a risk-based regulatory strategy aimed at "improving market confidence, consumer protection, financial literacy and reducing financial crime". In addition, the European White Paper on Artificial Intelligence argued that regulation of AI development should be managed by risk level (unacceptable risk - high risk - limited risk - low risk). In determining the level of regulatory intervention, risk regulation suggests a strategy for allocating resources to low risks. The basic idea that intervention for low risks should be at a level that does not waste excessive societal resources is expressed in the strategy that investigation, monitoring, management and control of low risks should be limited. For low risks, this may include screening, rule-based regulation (exemptions without notification and registration, renewal of qualifications instead of permits, proposing general principles or general standards), diversification of monitoring tools (less frequent monitoring, less sampling, use of follow-up, publicizing regulatory themes and issues, and prioritizing regulation), and engagement and incentives (multi-agency cooperation, providing incentives, and creating non-governmental alternatives). On the other hand, it is necessary to focus regulatory resources on higher risks to protect individual rights, including the protection of fundamental rights. With the rapid digital transformation, there is a need for social consensus on the need for regulation and arguments for the risk field. Therefore, it is necessary to propose social goals for the need to improve the system through risk management and suggest ways to achieve consensus. First, a social consensus on the need for regulation and arguments for risk areas should be established; second, regulatory methods can be diversified by moving away from administration-led risk regulation to service- and industry-oriented regulation, while encouraging autonomous risk management. Third, we can improve trust in regulation by establishing a dispute resolution system for risks and discussing the appropriate allocation of responsibilities.

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