[THE KOREA TIMES_신채은 변호사] Time to adopt negative regulatory system

신채은.jpgBy Shin Chae-eun

You have invented a new technology with world-changing capabilities. As it stands, there are no regulations surrounding this new technology.

The question then becomes how can the invention be commercialized in compliance with regulations that do not exist yet? A key thing to consider in a situation such as this is the legal landscape of the location or the country in which the technology is being developed.

Depending on which country you are in, it will be more or less difficult to commercialize this technology. Broadly speaking, it is more likely to be less difficult in the U.S. than in South Korea.

Government regulatory policies can be divided into two main categories: positive and negative regulations. Positive regulations define what is legal and prohibit everything else.
On the other hand, negative regulations define what is legally prohibited and allow for everything else.

In short, a positive regulatory system says “just do this” and a negative one says “everything is okay except these.”

The United States has adopted a negative regulatory system. Because all things are acceptable except that which government specifically bans, start-ups and creative innovators flourish. These systems enhance creativity by giving them confidence that they will not be punished unless they do what is explicitly forbidden.

Under these conditions, global companies including Google are quickly able to commercialize technologies.

How about our country? South Korea is a typical example of a country with a positive regulatory environment. Things cannot be done beyond what the government and the law specifically allow.

o try something new, start-ups have to check whether it can be covered by things that are already allowed. Therefore, creative and innovative technologies not regulated by existing laws, will have to wait until regulations specifically allow them.

In addition, such a system tends to bring about collusion between politics and business. If the interpretation of which technology is “permissible” is unclear, a small number of politicians have the actual authority to decide whether to allow or deny a business through regulatory changes and interpretations.

Newly emerging innovative ideas and projects are often labeled as illegal in Korea. Not only are products that use new technologies such as virtual currency, self-driving cars, drones, and others that were not expected at the time of the enactment of the law subject to regulations, but start-up companies cannot even begin.

In fact, Airbnb was not able to do business in South Korea due to article 3 (1) of the Public Health Control Act and Uber was not able to do business in South Korea due to article 81 (1) of the Passenger Transport Service Act.

South Korea’s innovative technologies are ready to compete, and they are tired of waiting for “permissible regulations” from this country’s government. The recent ban on ICO (Initial Coin Offering) shows how conservative Korea is in its attitude toward new technologies.

No matter how much the government stresses the Fourth Industrial Revolution and strengthens education based on new technologies in theory, legislation is blocked when it becomes a reality.

When introducing regulations on new technologies, it should consider introducing negative regulatory methods. We hope that lawmakers in Korea will find the courage to create such an environment.

Shin Chae-eun is a junior associate at HMP Law and a member of the Tech & Comms team.

출처 : http://www.koreatimes.co.kr/www/opinion/2018/05/726_249709.html

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