Research Report
Tasks of Public Law in Responding to Social Changes in the AI Era
Ⅰ. Background and Purpose of Research
○ With the rapid development and widespread use of artificial intelligence (AI), a global race has begun to develop and disseminate AI technologies. In Korea as well, various efforts are being made to prepare for the AI-driven future society, raising a host of legal and ethical issues.
○ Given that public law is closely related to determining the way of life for members of the community and managing risks within it, discussions on public law regulation of AI—as a tool and way of life—are more timely and significant than ever.
Ⅱ. Main Contents
▶ Legal Foundations and Public Law Discourse in the AI Era
○ Rule of Law and Protection of Fundamental Rights in the AI Era
- When AI technology is used in governmental or administrative functions, it can enable precision administration, augmentation administration, and connective administration. However, limitations such as trustworthiness and concerns about accountability and transparency emerge at the same time.
- This study focuses on key areas of fundamental rights that are impacted by AI technology—particularly the right to equality, the right to informational self-determination, and freedom of expression.
• On equality, it examines "digital inclusion" policies as a form of affirmative action to address digital divides accelerated by technological adoption, and considers the need for legal obligations extending to the private sector.
• On information rights, matters such as the right to informational self-determination, AI-driven call recording, and medical MyData are examined, with suggestions for effectively guaranteeing data subject rights in the era of generative AI.
• Regarding freedom of expression, legal frameworks for protecting fundamental rights against harms such as deepfakes are reviewed, along with discussions on U.S. interpretations of freedom of expression on social media and the need for new normative standards.
○ AI and Legal Methodology·Regulatory Approaches
- Areas where legal reasoning by AI is possible are explored, including Article 20 of the Framework Act on Administrative Affairs and judicial decisions concerning the use of administrative property.
- The regulatory design of the EU AI Act is examined to propose future directions for AI regulation.
○ Public Law Responses in the AI Era
- In building new regulatory governance models suitable for the age of AI, it is necessary to consider the multi-layered and multi-dimensional structure of AI systems.
- Regulatory approaches from major countries are reviewed, including regulating AI as a tool, approaching it from a complex perspective that integrates AI tools and infrastructure, and examining AI as a societal infrastructure.
- A redesigned regulatory framework is proposed—one that promotes technological growth and enhances national competitiveness, while also safeguarding against misuse or abuse of AI that may violate constitutional values.
▶ Current Legal Frameworks on Artificial Intelligence
○ Domestic and International Trends in AI Legislation
- Regulatory trends on AI include soft regulation, self-regulation, and ex post regulation. Issues such as the creation of new regulatory categories and governance of regulatory operations are discussed. Approaches range from strong regulation through a single AI law to frameworks emphasizing autonomous regulation.
- Centralized models in Europe, sector-specific approaches in the U.S., and China’s proactive support-and-control methods are analyzed, along with Korea’s legal and institutional developments.
○ EU AI Act
- The EU AI Act’s definition and classification of AI, scope of application, and risk-based regulatory structure are introduced, including delegated legal acts under Article 290 of the Treaty on the Functioning of the European Union (TFEU) for implementation.
▶ Public Law Challenges in Specific Sectors Related to AI
○ Public Order Administration Sector
- A German Federal Constitutional Court decision on police use of AI is analyzed. Possibilities for AI utilization are explored in areas such as crime-type and tool analysis, CCTV movement tracking, crime mapping (GeoPros), and predictive use in disasters (e.g., flood levels, wind speed), as well as preventive policing and criminal investigations.
- Cybersecurity legal system in South Korea is currently divided across public, private, and critical infrastructure sectors. Compared to advanced countries such as the U.S., it is insufficient. AI-related legislative proposals have also failed to adequately address cybersecurity. An integrated legal framework, improved governance, and stronger legal regulation are proposed.
○ Community Safety Sector
- Legal challenges in AI-based pharmaceutical development include regulatory approvals, AI technology development, data-related issues, product commercialization and user protection, and legal/policy support for training professionals and building infrastructure.
- Examples of disaster management using AI include extracting accurate data from large datasets, digital twin technology, and AI-based psychological recovery platforms. Proposals are made for integrating disaster and social disaster management systems, consolidating disaster and safety information, and codifying disaster safety management principles.
- With regard to autonomous vehicles, the need for legal regulation on who may request access to acquired information, under what conditions and scope, as well as the establishment of information management systems and revision of legal frameworks is emphasized.
- Additionally, the first example of automated administrative action under Article 20 of the General Act on Public Administration — the automated approval of imported food registration under the Special Act on Imported Food Safety Control—is examined. Issues of determinability and discretionary judgment are discussed, arguing that discussions around the use of AI for safety evaluations must balance both efficiency and safety, rather than prioritizing one over the other.
○ Data Sector
- Proposals include adding the term “intellectual property rights” to the Constitution and stipulating the purpose of protection under intellectual property law, revising the Copyright Act by removing the phrase “thoughts and emotions of a human,” and shortening the protection period for AI-generated works.
- To better protect data subject rights, the definition of personal data processors under the Personal Information Protection Act should be expanded to include operators of generative AI. Clarifying the concept of personal data, creating exception provisions, and defining profiling and its legal basis are also addressed.
○ Energy Sector
- Potential directions for reforming energy-related legal frameworks to prepare for the AI era are reviewed. This study also emphasizes the need for systematic energy planning to expand supply, enhancements to binding and centralized planning systems, and legislative support for the expansion of renewable energy—including carbon-free sources like offshore wind. It also highlights the importance of legislative frameworks for expanding electricity supply and promoting distributed energy systems.
○ Asset Management Sector
- Although the concept of a robot tax remains underdeveloped, the potential need for such a tax is acknowledged as a way to secure government revenue in response to job displacement caused by AI.
- In the digital securitization of real estate, some highlight its innovative potential for financing and support policy development, while others raise concerns about tax avoidance. Proposals include clear definitions of real estate assets and a decentralized verification system to prevent data manipulation.
- AI applications in land law are examined, including land planning under the Framework Act on the National Territory, the National Land Planning and Utilization Act, and the Seoul Metropolitan Area Readjustment Planning Act, as well as use in real estate disclosure and land transaction authorization systems.
Ⅲ. Expected Effects
○ By comprehensively reviewing major public law issues related to AI, both generally and in specific fields, the study explores legal solutions and offers direction for public law in the age of AI.
○ The findings can serve as a valuable resource in establishing legislative and policy measures related to AI in the future.