between Respondents and telecommunications business operators, and the
operators would not suffer any legal disadvantages for not following
Respondent’s request for the provision. Even if the operators feel
psychological pressure due to the request from the investigative agency
et al., this is only an indirect and factual, not a legal, disadvantage. Even
if operators had not complied with the request of the investigative
agency et al. and Respondents had obtained communications data by
getting a search and seizure warrant, it would not have caused any
disadvantages to the business of the operators (see Constitutional Court
2010Hun-Ma439, August 23, 2012).
Therefore, the Act of Acquiring Communications Data does not
amount to the exercise of governmental power, which is the subject of a
constitutional complaint under Article 68, Section (1) of the
Constitutional Court Act, and for this reason, the claim against the acts
of acquisition of communications data of Complainants listed in
Appendix 3 and Appendix 4 is non-justiciable.
B. Claim against Act Provision
1. Assessment on Directness
In order for a statute or a statutory provision to be subject to a
constitutional complaint, the statute itself must result in restrictions on
freedom, imposition of duties, or deprivation of rights or legal status
without a subsequent, concrete act of execution by the statute or the
statutory provision (see Constitutional Court 2017Hun-Ma1299, December
27, 2019). However, where there is a specific act of execution but no
remedy for it; where a remedy exists but there is no possibility it works,
forcing a complainant whose fundamental rights were violated to make a
detour to an unnecessary procedure (see Constitutional Court 96Hun-Ma48,
August 21, 1997); or where the content of the legal norm directly changes
the citizens’ rights or decisively determines the citizens’ legal status
- 37 -
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents