400092

ISBN: 978-3-86395-012-5
ISSN: 1864-2128
Gunnar Duttge, Sang Won Lee (Hg.)
The Law in the Information and
Risk Society
Gttinger Juristische Schriften

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Universittsverlag Gttingen Universittsverlag Gttingen
The information and risk society poses a new challenge for the law in all its frag-
ments. Modern media communication and technologies increase peoples prospe-
rity while stating new risks with not uncommonly devastating crisis-potential: The
banking crisis, the safety net for the euro zone and the nuclear incident in Fukus-
hima are only the latest forms of those specifc modern common dangers which the
law is facing in many cases due to its domestically limited validity - not or not
suffciently prepared. In order to promote the international dialog within the juris-
prudence there was a conference in October 2010 held by the faculty of law of the
Georg-August-Universitt, supported by the chair of GAU, together with the faculty
of Seoul National University School of Law discussing main issues of law in a modern
information and risk society. With this volume the results of this convention shall be
made accessible to everybody interested. Thereby it illustrates not only the variety of
new issues and aspects, but also reveals that this can only be the beginning on the
way to a deeper understanding of the complex correlations.
Volume 10 in the series Gttinger Juristische Schriften
The series is published by the Faculty of Law of the Georg-August-Universitt Gt-
tingen und makes events at the faculty publicly available.

Gunnar Duttge and Sang Won Lee (Hg.)
The Law in the Information and Risk Society

This work is licensed under the
Creative Commons License 3.0 by-nd,
allowing you to download, distribute and print the
document in a few copies for private or educational
use, given that the document stays unchanged
and the creator is mentioned.
You are not allowed to sell copies of the free version.

Erschienen als Band 10 in der Reihe Gttinger Juristische Schriften
im Universittsverlag Gttingen 2011

Gunnar Duttge and
Sang Won Lee (Hg.)

The Law in the Information
and Risk Society

Gttinger Juristische Schriften,
Band 10

Universittsverlag Gttingen
2011
Bibliographische Information der Deutschen Nationalbibliothek
Die Deutsche Nationalbibliothek verzeichnet diese Publikation in der
Deutschen Nationalbibliographie; detaillierte bibliographische Daten sind im
Internet ber <http://dnb.ddb.de> abrufbar.

Kontakt
Prof. Dr. Gunnar Duttge
e-mail: lduttge@gwdg.de

Dieses Buch ist auch als freie Onlineversion ber die Homepage des Verlags
sowie ber den OPAC der Niederschsischen Staats- und
Universittsbibliothek (http://www.sub.uni-goettingen.de) erreichbar und darf
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die Lizenzbestimmungen der Onlineversion. Es ist nicht gestattet, Kopien oder
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Satz und Layout: Alice von Berg
Umschlaggestaltung: Jutta Pabst

2011 Universittsverlag Gttingen
http://univerlag.uni-goettingen.de
ISBN: 978-3-86395-012-5
ISSN: 1864-2128

Table of Contents
Preace ii
Greeting rom the laculty o Law o Georg-August-Uniersitt Gottingen ix

SECTION 1:
CONSTITUTIONAL PRINCIPLES, DATA PRIVACY AND MEDICAL LAW
Hong Sik Cho
Liberal Democracy in State o Lmergency:
Seen By Standing on the Shoulders o Carl Schmitt 3
Werner Heun
Risk Management by the Goernment and the Constitution 15
Frank Schorkopf
Inormation as the Basis o Parliamentary Responsibility or Luropean Integration 31
Gunnar Duttge
1he Right to Ignorance in Medicine 41
Erwin Deutsch
Recent Research Accidents and New Approaches to Vaccination 49

SECTION 2:
CONTRACT LAW, INDUSTRIAL LAW AND OVERNIN STOC! E"C#ANE
Youngjoon Kwon
Judicial Modiication o Contract in Relation to the Change o Circumstances 65
Rdiger Krause
New Deelopments in Data Priacy or Lmployees in German Law 83
1able o Contents

i
SECTION $:
INTERNET LAW AND INTELLECTUAL PROPERTY
ohn !" #eitner
Korean Netizen Lquality in the Shadow o Real Name Veriication 103
Seong Wook Heo
An oeriew o ood saety regulation in Korea
- Precautionary Principle s. Cost-Beneit Analysis - 121

SECTION %:
CRIMINAL LAW AND CRIMINOLOY
Sang Won #ee
Obscenity in a Changing Society 133
!ar$a #aura %&h'
Lndanger Law: \ar on Risks in German Criminal Law 145
List o Contributors 165

P&efa'e
1he inormation and risk society poses a new challenge or the law in all its
ragments. Modern media communication and technologies increase people`s
prosperity while stating new risks with not uncommonly deastating crisis-
potential: 1he banking crisis, the saety net or the euro zone and the nuclear
incident in lukushima are only the latest orms o those speciic modern common
dangers which the law is acing - in many cases due to it`s domestically limited
alidity - not or not suiciently prepared.

1he requently transboundary and supranatural releance o these new risks lead to
a ineitable international cooperation concerning the eorts o a legal risk
limitation, in respect o the dierent constitutional and cultural circumstances,
howeer, this is a diicult exercise. Initial to all common eorts o dealing with
this challenge there is the international and intercultural dialog, een i the
implications and the eentually implemented solutions drit apart at national leel
in the end. In order to promote the international dialog within the jurisprudence
there was a conerence in October 2010 held by the aculty o law o the Georg-
August-Uniersitt, supported by the chair o GAU, together with the aculty o
law o the Seoul National Uniersity discussing main issues o law in a modern
inormation and risk society. \ith this olume the results o this conention shall
be made accessible to eerybody interested. 1hereby it illustrates not only the
ariety o new issues and aspects, but also reeals that this can only be the
beginning on the way to a deeper understanding o the complex correlations.

Gottingen,Seoul, May 2011 (he Editors

&eet(n) f&o* t+e ,a'-lt. of La/ of
eo&)0A-)-st0Un(1e&s(t2t 3tt(n)en
Gunnar Duttge
My dear colleagues o the respectable and extremely renowned law aculty o the
Seoul National Uniersity,
my dear colleagues rom Gottingen,
ladies and gentlemen, dear guests,

it is my great pleasure to cordially welcome all o you - and a ery warm welcome
goes to our guests rom Seoul who traelled so ar to be with us today. I may
express this warm welcome in my position as a medical and criminal law proessor
as well as on behal o my colleague Pro. Langeneld, dean o the local law school,
who apologizes or not being here due to other commitments. loweer, she sends
her warmest regards.
Last eening, ice president Pro. Mnch already greeted and welcomed you in
the name o the chairmanship o Georgia Augusta. Gottingen`s law aculty and its
members are no less cheerul. Some o these members are currently present or will
join us in the course o the next hours or by tomorrow.
1he immediate reason o our meeting is an initation by Gottingen`s aculty o
law which joins in the larger context o Georgia Augusta`s endeaors to strengthen
the existing international cooperation and to promote as well as extend
internationalization o the sciences.
In times o globalization across all areas o lie, haing been initiated long ago,
it should be natural and taken or granted that one`s own thoughts in the course o
Gunnar Duttge

x
Law and its scientiic adaptation don`t end at the national borders. 1hereore we
need to pursue with great interest the solutions and debates about similar, oten
identical legal questions o other legal systems. 1hereby we are oered the
opportunity to critically analyze and conront our own legal system. lor criminal
law, howeer, the amazingly well established relationship with our colleagues rom
South Korea is no news. lor decades now, and or hopeully many more,
proessors as well as doctoral students hae iaciously exchanged ideas.
Globalization, neertheless, reaches all areas o law. It certainly embraces ciil and
constitutional law and all other interdisciplinary ields, one o which is medical and
bio law, a traditional ield in Gottingen which has seen an upward trend in recent
years. 1he local center o medical law has strong ties with Lwha Uniersity`s
Institute or Biomedical Law & Lthics in Korea.
\ith regards to recent deelopments in Gottingen`s relationship to Seoul
National Uniersity and its law aculty, the meetings and lecture eents on the
occasion o the opening o a branch o Gottingen Uniersity in Seoul are especially
worth mentioning.
Just last year we were ortunate to welcome here in Gottingen the president o
the Seoul National Uniersity, who, during his isit to Gottingen`s Center or
Medical Law, oiced a strong interest in urther communication and exchange o
ideas, particularly between both law schools. \ith this background, we can take it
up rom here and with this conerence urther strengthen existing relations.
Besides our ast uniied interest in getting to know each other or institutional
reasons, we join today chiely because o our shared pursuit o the exchange o
scientiic ideas and or the purpose o deepening our knowledge o recent queries
o Law in today`s orged ahead risk and inormation society.
As you all know, Law is acing new societal challenges which can no longer be
coped with through conentional measures. One example is society`s growing
heterogeneity regarding its constitution and concomitant problems o integration,
another one the exorbitant increase in signiicance o the media and new orms o
communication in all public areas. An especially demanding societal challenge is
the - in ormer times unimaginable - dimension o interconnectedness and all the
consequences thereo, such as inormational protection o priacy, on one hand,
and on the other hand the amendment o responsibilities regarding the legal
sanctioning o harm done, through a struggle with incomprehensible complications
o causalities. 1hese catchwords are only a ew o many. 1hey stand or all the new
problems and questions which aect the interdisciplinary ields o legal sciences.
1he array o releant topics is broad and hardly lucid, yet we - and I mean all
o us as we are gathered here today - seemingly managed to perectly single out the
most essential questions or this conerence which we will go on to discuss in
detail later throughout the day.
I am exceptionally thrilled about eerything we are going to hear and urther
deliberate oer today and tomorrow. I wish to already thank eeryone ery much
who helped acilitate this conerence, and make it possible in the irst place, by
Greeting rom the laculty o Law o Georg-August-Uniersitt Gottingen

xi
contribution within the ramework o our discussions. I wish to especially thank
my dear colleague Pro. Kuk Cho, who on short notice accepted my oer and
within no time set the course or today`s conerence on track as well as established
contacts. It would not hae been possible to get together here in Gottingen today
without your committed support, dear Pro. Kuk Cho. 1hanks again!
Now, I would like not to urther prolong the commencement o the scientiic
part o this conerence and thereore wish, on behal o the dean o Gottingen`s
aculty o law, or the conerence to run smoothly.
One o the most popular German poems includes the ollowing beautiul and
apt motto: Inherent to eery new beginning is a special magic`.

SECTION 1:
CONSTITUTIONAL PRINCIPLES, DATA PRIVACY AND
MEDICAL LAW

L(be&al De*o'&a'. (n State of E*e&)en'.:
Seen 4. Stan5(n) on t+e S+o-l5e&s of Ca&l S'+*(tt

Hong Sik Cho ) *
I6 T+e C-&&ent lobal ,(nan'(al C&(s(s an5 !o&ea7s Res8onse
Len though the global inancial crisis was deemed to be as seere emergency as
the worldwide depression o the 1930s, the Korean goernment has not yet taken
e+tralegal measures. Since basic constitutional norms presuppose a background o
social and political stability, at times o emergency, whether it being military
exigencies in the theater o war` or less grae, but unusual and urgent conditions`
such as current inancial crisis, the basic constitutional norms are subject to
suspension. 1he Constitution o Korea, in Article 6, proides that in time o a
grae inancial or economic crisis, the President may take the minimum inancial
and economic action or issue orders that hae the eect o an Act when, and only
when there is an urgent need to take measures or the maintenance o national
security or public peace and order, and there is no time to await the conocation o
the National Assembly. Despite the broad presidential powers prescribed by the
Constitution, I would say that the Korean goernment has responded to the
inancial crisis with much constitutional care and ully aware o the temptation o
oer-reactions.
loweer, aside rom the e+tralegal measures, the Korean goernment did take
eery means without departing rom established principles. Among the measures
taken by the Korean goernment has increased expenditure on research and
deelopment, introducing numerous legislatie bills, taking arious administratie

1his is a reised ersion o the paper published at ,ationa- (aiwan .ni/ersit0 #aw Re/iew ol. 4, no. 3,
55-84 ,Dec., 2009,.
long Sik Cho

4
options, proiding suicient liquidity and executing budget earlier than scheduled.
1hese means taken by the Korean goernment seemingly are within the scope o
its administratie discretion. loweer, the Korean Assembly was criticized or
impeding goernmental eorts by not timely resoling the legislatie bills. In
particular, because o the deadlock surrounding the controersial media bills, the
Korean Assembly could not ocus on bills which aect the daily lies o people
such as a bill aimed at reiing small-scale shops. In spite o apparent lack o sense
o responsibility on the side o the political leaders, the Korean economy is
gradually recoering rom its downturn.
Such being the case, the goernmental reaction to the crisis has not been
subject to judicial reiew. 1here are a handul o the Constitutional Court cases
dealing with the IMl bailout crisis`, a inancial crisis the Korean people deem ar
seerer than the current crisis. Len though much more swit and radical measures
were taken by the Korean goernment, none took on the e+tralegal orm, and none
were declared unconstitutional by either the Supreme Court or the Constitutional
Court. Gien the lack o e+tralegal actions taken by the goernment and releant
precedents, I would like to address general issues related to emergency power rom
theoretical perspecties.

II6 W+. Ca&l S'+*(tt (n t+e State of C&(s(s9
Carl Schmitt, a jurist with an enormous inluence on German political and legal
thought, is known not only or his charge that liberalism is nothing but one
ideology seeking to impose upon the whole its own partial conception o the good
lie, but also or association with the Nazis. Surprisingly, the Lnglish-speaking
world including the United States in the atermath o September 11 has recently
had a renaissance o interest` in his work. Schmitt`s critique captures better than
contemporary critics the problematic nature o liberalism at least in some aspects,
and I would like to examine Schmitt`s well known insights and highlight some
lessons or times o crisis by oering my own response to what I regard to be
Schmitt`s points.
According to Schmitt, the stupidity o parliaments proides the occasions or
executies to exercise the soereign power that always resides in the executie.
Schmitt`s antiliberalism seems to get more releant in times o crisis as relected in
the post-911 attention o constitutional theorists. As Sanord Leinson points out,
ormer US President Bush`s response to the September 11 attaches presents
constitutional theorists with the kind o problem Schmitt seems to hae addressed.
In this sense, we can take note o lessons rom Schmitt.

Liberal Democracy in State o Lmergency

5
III6 S'+*(tt7s D(a)nos(s of L(be&al De*o'&a'.7s Wea:ness
Schmitt`s authoritarian theory o law and politics proides that Constitutional
democracy is sel-contradictory and illusionary, which is reealed in case o crisis.
According to Schmitt, to oercome crisis the constitutional principle should gie
way to unconstrained political soereignty so that the soereign can ollow the
collectie will o the people without any constraint. lurther, Schmitt criticizes
liberalism asserting that the liberalism is illusionary because neutrality, the rule o
law, and constitutional democracy rest on contradictory premises. le also argues
that the liberalism is hypocritical because liberals hide their particular purposes and
selish economic goals by inoking non-existent uniersality. 1o Schmitt,
constitutional democracy is a mere amalgam o two contradictory components,
namely, the liberal component o constitutionalism and the political component o
democracy. \hile Schmitt regards a genuine democracy as the soereign authority
o the collectie unity o the people, constitutionalism does not concretize any
political substance. 1he purported neutrality o the latter, in Schmitt`s iew, is used
as an instrument o the liberal bourgeoisie to deend its priate and economic
interests. Schmitt states that the indiidualism inherent in indiidual human rights
can be reduced to the selish goals o the bourgeois while the separation o powers
preented each constitutional institution rom exercising soereign authority in
Schmittian sense. As such, in constitutional democracy, a pure democracy where
people express and accomplish their collectie will cannot exist. loweer, it is
both practically and conceptually possible to establish a goernment with two
components together. In particular, liberalism is not deoid o political substance
in the sense that discrimination and bias, speciically in Kantian liberalism, is the
irst and oremost enemy o a liberal community where people respect each other`s
dignity and reedom on the basis o equality.
laing told this, while Schmitt raises some disturbing questions, his
proocatie thesis, I think, may help us to recognize a disturbing aspect o
liberalism as eidenced in the current global inancial crisis. 1he irst step to
scrutinize Schmitt`s critiques is to grasp what he means by the political.` Contrary
to the liberals` emphasis on uniersality o all human beings, Schmitt argues that
in the domain o the political, people do not ace each other as abstraction but as
politically interested and politically determined persons, as citizens, goernors or
goerned, politically allied or opponents.` lor example, een i the modern
democracy established uniersal human equality, it does not necessarily mean the
disappearance o substantie inequalities, because inequality would likely shit in
the economic sphere so that this area would take on a new, disproportionately
decisie importance.` Schmitt warned that under the conditions o supericial
political equality, another sphere in which substantial inequalities preail will
dominate politics.` I think this proides a signiicant insight or understanding the
current dominance o economics oer politics.`
long Sik Cho

6
Schmitt`s relection sends a wake-up call or those who beliee in rational
indiidualism. Rational indiidualism puts too much emphasis upon rationality and
ignores that it is through political discourse in public sphere that democratic
citizens rather than rational consumers can introduce questions o alues into
deliberation. A alue is constituted through political action, an action through
which political agents create a common alue by committing themseles to that
alue. \ithout a plurality o competing orces, politics is displaced by mere trade
between selish interest groups or rational calculation by technocrats. 1he current
global inancial crisis is a dramatic example o the dangerous consequences that
too much emphasis on rationality can brings up. 1he problem was not a ailure o
rational analysis but, according to President Obama`s diagnosis, was a collectie
ailure o responsibility in \ashington, on \all Street and across America.` More
likely, Schmitt would argue that the problem here is the concept o rationality
itsel. 1he myopic rationality rewarded those who try to game the system`,
instead o those who compete honestly and igorously within the system.`
I think that Schmitt successully shows the dangers that the dominance o the
rational indiidualism bring to the democracy. Liberal democracy, as a regime, is
much more than a mere orm o goernment gien that it concerns the conceptual
ordering o social relations. A deining actor o liberal democracy is pluralism,
meaning the dissolution o one and only idea o the good lie. Pluralism not only
secures indiidual equal liberty or all, but also legitimates conlict and diision.
loweer, rational indiidualism oerlooks that the essence o pluralism consists in
recognizing that there must be a wide ariety o perspecties concerning alues
and thereby sees objectiity as belonging to the things themseles. My concern is
that too much emphasis on rationality would make rationalism dominate modern
democracy. 1his may be a real threat to democracy because it may negate the
ineitable conlict o alues and aim at a uniersal rational consensus. But then, I
do not adocate an unconstrained extreme pluralism because such alue relatiism
does not recognize that certain dierences are constructed as relations o
subordination.
Is there any other way to make whole our liberal democracy project than to
resort to rationality Once the pluralism is accepted, there seem to be three options
in speciying the terms under which people with dierent conceptions o the good
can lie together in political association. lirst is to ind procedures to deal with the
dierences. loweer, the creation o a mere modus iendi that regulates the
conlict among dierent iews is not enough because it will weaken the state to
such an extent that it reduces to a reeree with a purely instrumental unction and
thus making the unity a mere conergence o interests, not a proper orm o unity
o a plural society.
1he second option would be to emphasize priority o the right oer the good.
As Rawls points out this is to establish political justice that all reasonable` citizens
would support despite their deep doctrinal disagreement on other matters.
loweer, Rawl`s conception o justice, similar to social contract metaphor, appeals

to an indiidual`s idea o rational adantage. In addition, as Schmitt points out, too
much emphasis on uniersal morality would place onesel in the ield o ethics
instead o the ield politics because being blind to dynamic interactions among
members, one would deny the need to constitute collectie identities.
1he third option is to shed a new light on politics. Some o liberal theories o a
well-ordered society presuppose that political actors are only drien by what they
see as their rational sel-adantage and thus the realm o politics is inally reduced
to a neutral ield o competing interest. loweer, is it possible that a rational
political consensus, a deinite solution to the issue o justice, ills a gap between
justice and political decision that will constitute concrete content o democracy
oreer In particular, the claim o neutrality does not stand in times o crisis. 1his
is because there cannot be neutrality in the political.` 1he essential part o the
concept o the political is such that people constitute their alues through political
articulation, which in turn constructs the identity o the people. Such an identity
can only exist through a ery struggle about the multiple and competing
identiications o the people. 1hus, the best way to keep liberal democracy alie
might be to get people to make alue articulations. 1he recognition o dynamic
aspect o politics, that is, ariability is the condition o existence o democratic
politics. Merely seeking a inal rational resolution o conlicts puts the democratic
project at risk. Instead, in a democratic polity, conlicts and conrontations, ar
rom being a sign o imperection, indicate that democracy is alie and inhabited
by pluralism.
IV6 S'+*(tt7s P&es'&(8t(on (n T(*es of C&(s(s as a)a(nst t+e R-le
of La/: E*e&)en'. Po/e& W(t+o-t C+e':
1he question o crisis or legal scholars is how to cope with a shock to a political
system that is so great that normal rules seem no longer applicable. Lxceptional
measures or exceptional times are usually deemed to hae the eect o
undermining both separation o powers and indiidual rights. loweer, Schmitt
claims that the ability o a ruler to suspend the rule o law is the ultimate act o
soereignty. 1o Schmitt, Soereign is he who decides on the state o exception.` I
will call this statement as Schmitt`s soereign thesis. In state o exception where
the entire legal order is at stake, a soereign decision is not constrained by any
normatie principles. 1he extraordinary powers aorded to the President in times
o crisis, coupled with the power to recognize such a crisis essentially by executie
iat, has led to a shocking prolieration o executie orders declaring a state o
emergency.` lor example, in \eimar Germany, executies gained great powers
through declarations o states o emergency which then was not conined to the
area which had originally triggered its application. In Schmitt`s idea, the soereign
may set aside constitutional rules to act directly to cope with the threat based on its
long Sik Cho

8
ultimate responsibility or the continuing existence o the state. As a result, the
\eimar Constitution had broken under emergency goernment.
Is there a way or Schmitt`s soereign thesis to reconcile with the concept o
the rule o law A ew options are possible. lirstly, one can claim that the
soereign thesis has its own immanent restraint because soereign will not keep its
power unless it successully secures homogeneity in substance with the demo.
loweer, there is no controlling mechanism against the soereign`s arbitrary
exercise o power in Schmitt`s theory because een though a soereign is
dethroned, another soereign o the same nature will accede to the throne.
1he second option can be ound in that while under some o the
contemporary constitutional theories the Constitution entitles the President to
disregard dierent constitutional construction suggested by the courts, the
President`s arbitrary exercise o power is subject to restriction because Congress
could impeach him. loweer, I think this is too optimistic in the sense that there
is no conceptual resource with which to challenge a decision by the President
despite expected impeachment. As a matter o concept, Schmitt`s soereign thesis
contradicts with the rule o law because the true Schmitt`s position would occur
when the President takes actions that he beliees to be essential to the state`s
surial when the Constitution properly construed does not allow it.
1hirdly, the soereign thesis itsel can be construed constitutional. loweer, it
is nae to regard the Constitution as speaking clearly to the resolution. \hile the
rule o law suggests the primacy o abstract normatie principles oer concrete
political decisions, Schmitt states that normatie principles cannot hae an eect
on human society unless they are interpreted by particular agents and applied to
particular circumstances. lurther, one may think to substitute courts as soereign.
loweer, this would not guarantee the rule o law at work because judges also may
make arbitrary decisions. In addition, the state o emergency cannot be deined in
adance and thereore the unanticipated nature o the emergency calls or the
Schmittian soereign. Gien the undeinability o emergency all the law can do is
to designate who has the power to act to address the emergency.
In sum, there is no way to conceptually reconcile between the soereign thesis
and the rule o law. 1hereore, I conclude that to resole the dilemma, one must
ind a practical way to tame the Schmittian soereign. lence, the question now is
how to surie een exceptional situations without abandoning its liberal
constitution.
lirst, we can consider to rely on high politics.` According to Legal
Realist,Critical Legal Studies, the interpretation o legal terms is determined by
politics not only in states o exception but also in the normal state o aairs. As
long as we are able to deelop politics that is high`, meaning politics inoling
undamental political ision about the proper way to organize and steer society, the
impossibility o constitutionalism should not trouble us.
Secondly, the precedents set through such high politics can inally build a
normatie structure which can ultimately constrain the soereign oer time. I

9
already noted in the aboe that the purported legal control will be ineectie
because, een i emergency is constitutionalized, the interpretation gien to such
open-ended terms will be determined by politics. loweer, as cases are
accumulated oer time, the web o cases will ix the contour to such a large extent
that the declaration o an emergency is regulated in a legally meaningul way as
well. 1hereore, one cannot oeremphasize the need to retain the possibility to
subject the soereign`s decision to ex post acto reiew. I no judicial reiew is
aailable, then legal exceptionalism will arise een when law is most determinate.
One might be concerned that normalizing emergencies such as in the second
option may result in permanent emergency. loweer, it seems to me better to
normalize emergencies rather than to keep them outside normal goernance. In
short, bending o the constitutional ramework would be preerred oer its
breaking.
I would like to inish this chapter with a Korean case. lormer President Kim
\oung-sam directed his ruling party to enact a law to prosecute ormer presidents
Chun Doo-hwan and Roh 1ae-woo or their respectie roles in 199 coup d`etat
and 1980 bloody crackdown on Korean citizens in Kwangju. 1he legislation raised
issues about its retroactiity and whether it is a iolation o the Korean
Constitution`s prohibition against ex post acto laws because the law authorizes
prosecution o a past act or which the statute o limitation has already run. 1he
Constitutional Court rendered its decision regarding the oregoing in 1996 and the
Act was not struck down. My point here is not about the constitutionality o the
Act, but about the act that both the coup d`etat and the enactment o the law were
reiewed in a judicial manner by the Court.
V6 Con'l-5(n) Re*a&:s
Liberal democracy has its own deiciencies. In emergency situations someone, the
president, the court or whoeer the case may be, has to take decisie action to
cope with the emergency. As discussed aboe, there is inherent risk that any such
exercise o soereign power may lead to its abuse. loweer, it is impossible to put
in place a rule to address such abuse in adance because o the unpredictability o
emergencies. lor example, it is impossible or one to address all the possible
eentualities in a gien contract because o the diiculty in predicting the diering
possibilities. 1hereore, to a certain extent, one has to rely on both parties` good
aith and air dealing to resole situations not speciically addressed in contract.
1his example reminds me o \ittgenstein`s insightul statement: no course o
action could be determined by a rule, because eery course o action can be made
out to accord with the rule.` ,LUD\IG \I11GLNS1LIN, PlILOSOPlICAL
INVLS1IGA1IONS 69 ,3d ed., 2001,,. I one would accept \ittgenstein`s iew, one
would ind that indeterminacy can be seen as inherent in the concept o rule o law
itsel. ,lor example, \asuo lasebe, (he Ru-e of #aw and 1ts 2redica'ent, 1 RA1IO
long Sik Cho

10
JURIS 489 ,2004,. \ittgenstein, howeer, proides an exit out o this paradox:
there is a way o grasping a rule which is not an interpretation.` ,\I11GLNS1LIN,
supra at 84,. Quite oten, indeed, one can grasp the meaning o a rule right away
without recourse to any interpretation. In this case, the meaning o a rule is
determined by conentions widely established in society. In short, \ittgenstein`s
point is that interpretation is required only when established linguistic rules and
conentions underdetermine the meaning o an expression ,lor example, ANDRLI
MARMOR, IN1LRPRL1A1ION AND LLGAL 1lLOR\, ch. 2 Meaning and
Interpretation` ,lart Publishing 2d ed. 2005,,. I think that \ittgenstein`s iew
implicates a lot or the question this essay seeks to answer. 1he key to resoling
the problem o indeterminacy in rule o law in states o emergency would be to
build up conentions, whether legislatie or judicial, necessary to control
soereign`s exercise o emergency power.
On the other hand, i one would take a unctionalist deinition o the rule o
law, one would draw the same conclusion. lor example, lriedrich A. layek
understands the rule o law such that it make|s[ it possible to oresee with air
certainty how the authority will use its coercie powers in gien circumstances, and
to plan one`s indiidual aairs on the basis o this knowledge.` ,lRILDRICl A.
lA\LK, 1lL ROAD 1O SLRlDOM 54 ,1944,,. I the goal is to reach the state o
layekian legal system, I would say that politics as constrained by appropriate
political practices could accomplish the goal as well.
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Constitutional Court Judgment o No. 2, 2003, 2001 lun-ba 35.
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Canadian ourna- of #aw and urisprudence, 67, 3-4.
Llster, J. ,2003,. Don`t burn your bridge beore you come to it: Some ambiguities
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Marmor, A. ,2005,. 1nterpretation and -ega- theor0. Portland, OR: lart.
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McCulloch . Maryland, 1 U.S. 316 ,1819,.
McGarity, 1. O. ,1998,. A cost-beneit state" 9d'inistrati/e #aw Re/iew, 50, -9.
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R(s: Mana)e*ent b. t+e o1e&n*ent an5 t+e
Const(t-t(on
Werner Heun
I6 Int&o5-'t(on: Se'-&(t. ; Dan)e& ; R(s:
At irst sight risk management by the goernment is an unamiliar concept in
German constitutional law. Much more common are the concepts o security and
its opposition: danger. 1he three notions security, danger and risk are closely
interrelated and risk management has been a goernmental unction or a long
time, although it has not been suiciently conceptualized as such. Speaking about
these dierent but interrelated concepts in German constitutional theory and law
in the Lnglish language has to take into account the slightly dierent meanings and
associations o the Lnglish and German expressions. At least in legal language or
example the German word Geahr` means imminent danger in Lnglish.
Beore turning to the subject o risk management itsel it seems useul to
clariy the three notions and their relation to each other in a short historical
oeriew.
1. 1he oldest concept in political and constitutional theory is security.
1
1he
Roman securitas, where all modern Luropean notions are deried rom, originally
means plainly the absence o grie or trouble. It soon gained a political sense as an

1
listorical oeriews Werner Con=e, Sicherheit, Schutz, in: Geschichtliche Grundbegrie, ol. 5,
1984, p. 831-862, 9ndrea Schri''BHeins, Gewissheit und Sicherheit. Geschichte und
Bedeutungswandel der Begrie certitudo und securitas, Archi r Begrisgeschichte 34 ,1991,, p.
123-213, 35 ,1992,, p. 115-213, !ichae- !akropou-os, listorisches \orterbuch der Philosophie, ol. 9,
1995, col. 45-50.
\erner leun

16
expression o the Pax Romana but meaning only a subjectie eeling. During the
Middle Ages securitas became an objectie status and then a positie political
concept. It is howeer the rise o the modern state that eleates securitas publica to
the oremost goal o the state.
2
In addition this general purpose o goernment is
diided into two dierent aspects: internal and external security which are guided
by dierent rules and maxims.
3
1homas lobbes integrates saety into a coherent
political theory by deining it as not mere surial in any condition but a happy
lie so ar as that is possible`.
4
John Locke qualiies security as central element o
the integral goal o peace, saety and publick good o the people`
5
which are the
concretization o lie, liberty and property as the end o goernment.
6
In the 18
th

Century public saety was extended to a comprehensie concept that encompassed
the happiness o the people.
As a countermoement security was reduced to its

core as public saety in a narrow sense as well as the rule o law.
8
At the end o the
19
th
century a process o extension set in again. 1he idea o social security became
a dominant goal o goernment
9
een beore the inention o the notion by l.D.
Rooseelt in the 1930s
10
and increasingly eer since.
2. Security is always threatened by danger. In the Lnglish language danger in
general means that harm or damage is impending. As a juridical concept danger
,Geahr, is a product o 19
th
century police law in Germany
11
and in a literal
translation means a situation or condition, in which in case o an unimpeded
course o eents a condition or a conduct will with suicient probability lead to an
injury o public saety`.
12
1his traditional deinition was deeloped by Prussian
administratie courts during the Lmpire and is still applied today. Public saety in
this context is also legally deined as the whole public legal order, indiidual lie,
health and reedom as well as the institutions o goernment and public goods like

2
See also osef 1sensee, Das Grundrecht au Sicherheit, 1983, p. 3ss.
3
Con=e, Sicherheit ,ln. 1,, p. 842s.
4
(ho'as HoAAes, De cie ,164,, ch. 13, 4. ,Lnglish ed. by R. 1uck,M. Silerthorne, 1998, p. 143,
ide'E Leiathan ,1651,, II, 30.
5
ohn #ocke, 1wo 1reatises o Goernment ,1690,, II, ch. 9, 123ss., 131.
6
2eter Graf Kie-'annsegg, Volkssouernitt, 19, p. 143,Wa-ter Euchner, Naturrecht und Politik bei
John Locke, 1969 ,repr. 199,, p. 198ss.
See e.g. Christian Wo-ff, Vernntige Gedancken on dem Gesellschatlichen Leben der Menschen
und insonderheit dem gemeinen \esen ,4. ed. 136,, II, ch. 1, 222s., in: C. \ol, Gesammelte
\erke 1. Abt. ol. 5, p. 165s.
8
1''anue- Kant, Uber den Gemeinspruch: Das mag in der 1heorie richtig sein, taugt aber nicht r
die Praxis ,193,, A 232-20, in: \erke ,ed. \. \eischedel,, ol. 6, p. 12-12 ,143-164,, Wi-he-' /on
Hu'Ao-dt, Ideen zu einem Versuch, die Grenzen der \irksamkeit des Staates zu bestimmen ,192,,
in: \erke ,ed. A. llitner,K. Giel,. ol. 1, 1960, p. 56-233.
9
See Fran=BFa/er Kauf'ann, Sicherheit als soziologisches und sozialpolitisches Problem, 2. ed. 193,
p. 91ss, Gerhard 9" Ritter, Der Sozialstaat, 2. ed. 1991, or the legal concept o the social state in
Germany see Hans Gacher, Das soziale Staatsziel, in: landbuch des Staatsrechts, ol. II, 3. ed. 2004,
28, p. 659-84.
10
Frank-in D" Roose/e-t, Speech 30. Sept. 1934, 1he Public Papers and Addresses o lranklin D.
Rooseelt ,ed. S.I. Rosenman,, ol. 3, 1938, p. 413-425 ,421,.
11
Seminal decision: Preu|isches Obererwaltungsgericht 10. June 1880, in: Preu|. Verwaltungsblatt
189,80, p. 401ss.
12
See e.g. 2 I a Nds. SOG, Fran=B#udwig Kne'e0er, Polizei- und Ordnungsrecht, 11. ed. 200, p. 62ss.
Risk Management by the Goernment and the Constitution

1
public utilities. As a consequence any iolation o a law that protects public - not
only priate - interests is qualiied as an injury o public saety`.
13
1he police and
the general administration are authorized to take the necessary measures i the
danger is imminent. Imminence is deined by suicient probability according to
general experience o lie, so that the injury is considered almost certain rom the
perspectie o the acting oicer.
14
1he assumed certainty o the realization o the
danger is the crucial dierence to risk. 1he preention o dangers by the
goernment has thereore to be distinguished rom risk management.
3. 1he concept o risk is only a recent deelopment in German jurisprudence.
Since especially nuclear plants may lead to catastrophic damages or public saety,
although only with a ery low probability, the traditional concept o the preention
o imminent danger according to the rules o police law was considered insuicient
and thereore supplemented by a new concept o risk preention. In this context
risk is legally deined as a product o the extent o the expected damage and the
probability o its occurrence. 1he deining dierence to imminent danger is -
solely - the by ar lower probability.
15
1his legal concept is more or less restricted
to the law o technical saety. Len the notion o a risk society` pertains mainly to
these technical risks.
16
Its main applications are the law o nuclear plants as well as
genetic technology and now more recently nanotechnology.
1
1he concept is the
basis or legal preention measures which should orestall the occurrence o
imminent dangers in adance. 1he precautionary principle authorizes goernment
to take such preentie measures.
18

Risk and its management is a problem o a wider scope that exceeds by ar the
narrow limits o the so ar described concept o technical risks.
19
A much broader
perspectie is needed since technical risk is only a ery partial aspect o risk. Risk
in this broad sense has two elements.
20
It presupposes irstly uncertainty about the

13
Kne'e0er, Ordnungsrecht ,ln. 12,, p. 2s.
14
%" DrewsHG" WackeHK" 3oge-HW" !artens, Geahrenabwehr, 9. ed. 1986, p. 224, R" 2oscher,
Geahrenabwehr, 1999, p. 114-128.
15
Original deinition: BMl1 ,ed.,, Deutsche Risikostudie Kernkratwerke 199, lauptband, p. 10-
16, &rn 1psen, Die Bewltigung der wissenschatlichen und technischen Lntwicklungen durch das
Verwaltungsrecht, VVDStRL 48 ,1990, p. 1-206. ,186s.,, 9ndreas Reich, Geahr - Risiko -
Restrisiko, 1989, p. 85-132, .do di FaAio, Risikoentscheidungen im Rechtssaat, 1994, S. 3s., #i/
aecke-, Geahrenabwehrrecht und Risikodogmatik, 2010, p. 49-16, critical 9rno Scher=Aerg, Risiko als
Rechtsproblem, Verwaltungsarchi 84 ,1993,, p. 484-513, ,49ss,.
16
.-rich %eck, Risikogesellschat, 1986, p. 25-112, see also Gotthard %ech'ann, Risiko als
Schlsselkategorie der Gesellschatstheorie, KritV 1991, p. 212-240, also in: idem ,ed.,, Risiko und
Gesellschat, 1993, p. 23-26.
1
C. aecke-, Geahrenabwehrrecht ,ln. 15,, p. 16-48.
18
lor Germany, see .-rich K" 2reuI, Risikoorsorge als Staatsaugabe, in: D. Grimm ,ed.,,
Staatsaugaben, 1993, p. 523-551, Wo-fgang K&ck, Risikoorsorge als Staatsaugabe, AoR 121 ,1996,, p.
1-23, generally on a comparatie basis Cass R" Sunstein, Laws o lear. Beyond the Precautionary
Principle, 2005, p. 15ss.
19
Risk management in Germany is understood only in this narrow sense, see e.g. EiAe Riede- ,ed.,,
Risikomanagement im oentlichen Recht, 199.
20
See generally ,icho-as Rescher, Risk. A Philosophical Introduction to the 1heory o Risk Laluation
and Management, 1983, p. 5ss, ohn 9da's, Risk, 1995, 8tthein Ra''stedt, Risiko, listorisches
\orterbuch der Philosophie ol. 8, 1992, col. 1045-1050, dierent approach by Herfried !nk-er,
\erner leun

18
uture and secondly the possibility o harm and loss on one side as well as mostly -
i not always - the possibility o gain or other positie deelopments on the other
side. As a general obseration bad contingencies cannot exist in the absence o
aourable ones.
21
Natural disasters seem prima acie to present a counterexample
but only i one neglects the act that people went the risk o being hit by such a
disaster by settling on the coast ,in case o loods,, in an area that is endangered by
earth quakes or liing near a olcano.
1he ormation o such a broad concept o risk can be traced back to the Italian
Renaissance when in the 15
th
century sea insurances were established.
22
Origins o
insurances can een be ound in the Ancient Near Last, Greece and Rome
23
and
certain orms o trading in prehistoric societies may be conceptualized as early
insurance methods.
24

1he originality o the Renaissance concept o risk is the speciic combination
o a contingent uture with rationality. 1he deining moment is that risk can be
calculated. 1he basis o risk calculation was the discoery o mathematical
probabilities. 1he irst systematic studies were done by Girolamo Cardano in the
16
th
century, who ound out the exact mathematical probability o rolling a
particular sum with two dice.
25
1his irst approach was urther deeloped to the
concept o expected alue, also called mathematical expectation, oer the next
hundred years namely by Christiaan luygens, who determined the expected
outcome o a game that was the weighted aerage o all possible outcomes.
26

In the 18
th
century another mathematician o the Bernoulli amily came to the
conclusion that the price one was willing to pay in the marketplace was not the
expected alue but rather the expected utility and that indiiduals derie a

Strategien der Sicherung: \elten der Sicherheit und Kulturen des Risikos. 1heoretische Perspektien,
in: idem ,ed,, Sicherheit und Risiko, 2010, p. 11-33.
21
Da/id 9" !oss, \hen All Llse lails. Goernment as the Ultimate Risk Manager, 2002, p. 22.
22
See 2ana0otis 2erdikas, Die Lntstehung der Versicherung im Mittelalter, Zeitschrit r die gesamte
Versicherungswissenschat 55 ,1966,, p. 425-509, Karin ,eh-senB/on Str0k, Die enezianische
Seeersicherung im 15. Jahrhundert, 1986, Kar- H" 3an DJE-den, 1he Deelopment o the Insurance
Concept and Insurance Law in the Middle Ages, in: l.J. Johnson ,ed.,, 1he Medieal 1radition o
Natural Law, 198, p. 191-199 ,196s.,, see also Doug-ass C" ,orth, Institutions, Journal o Lconomic
Perpecties 5 ,1991,, p. 9-112 ,106s.,.
23
C"F" (renner0, 1he Origin and Larly listory o Insurance, 1926, p. 4ss., on the medieal
understanding within the ramework o the teachings on usury see %irger 2" 2riddat, Zuall, Schicksal,
Irrtum, 1993, p. 25ss.
24
See Richard 9" 2osner, A 1heory o Primitie Society with special Reerence to Law, Journal o Law
and Lconomics 23 ,1980,, p. 1-53.
25
See 2eter #" %ernstein, Against the Gods: 1he Remarkable Story o Risk, 1996, p. 4-53, #"E"
!aistro/, Probability 1heory, A listorical Sketch, 194, p. 18-25.
26
See 1an Hacking, 1he Lmergence o Probability: A philosophical Study o Larly Ideas about
Probability, Induction and Statistical Inerence, 195, p. 92-101, who considers the time o around
1660 as the birthtime o probability` ,p. 11,, see also !aistro/, 1heory ,ln. 25,, p. 48-55, or the
complicated and intertwined relationship between mathematical probability, statistical data and
insurance see also #orraine " Daston, 1he Domestication o Risk: Mathematical Probability and
Insurance 1650-1830, in: L. Krger et al. ,eds.,, 1he Probabilistic Reolution, Vol. 1: Ideas in listory,
198, p. 23-260.

19
progressiely smaller amount o utility rom each additional currency unit.
2
1his
diminishing marginal utility o wealth leads to the psychological and economical
phenomenon o risk aersion.
28
1hereore, indiiduals will place a higher alue on
losses than on equally sized gains. 1hat aors insurances in general, since people
will pay more than the expected alue o hazard.
29

1his attitude o indiiduals to risk is also strongly characterized by the act that
risk acceptance is generally higher i it is taken oluntarily than i the risk is
,inoluntarily, imposed by a third party.
30
loweer, this distinction should not be
made the basis o a categorical dierence between danger and risk, as has been
proposed by Niklas Luhmann, who deines danger as imposed and risk as based
on human decision.
31

II6 Met+o5s of R(s: Mana)e*ent
Since the world is ull o risks man has always tried to deal with risk. Lssentially
there are three dierent methods to modiy and moderate risks.
32

1. 1he most common and at irst preerable method is risk reduction. People
try to minimize risks by eliminating or substantially reducing the expected risk.
1his perspectie dominates especially public law. 1he preention o imminent
danger is the model or risk reduction. Saety regulations are a prime example or
this strategy. Criminal Law is probably the oldest method o risk reduction by
regulation.
33
Quite oten howeer, risks and losses are unaoidable. In this case,
risk management by risk reduction ails to a great extent. Still, there are other
methods which are oerlooked quite oten.
2. It might be easible in many cases to reallocate risks. 1here are two methods
o risk reallocation which supplement each other. It is possible to simply shit risks
or the risk can be spread.
34
A classical example or shiting risks are liability rules.

2
Da/id %ernou--i, Specimen theoriae noae de mensura sortis, in: Commentarii academiae scientiarum
imperialis Petropolitanae, 6 ,138,, p. 15-192, Lnglish translation, Lconometrica 22 ,1954,, 23-36,
or the modern ersion o expected utility theory in economics ounded by ohn /on ,eu'annH8skar
!orgenstern, 1heory o Games and Lconomic Behaior ,1944,, 3. ed. 1953, see !i-ton
Fried'anH#eonard " Sa/age, 1he Lxpected Utility lypothesis and the Measurability o Utility, Journal
o Political Lconomy 60 ,1952,, p. 463-44, but see also already the classical exposition by 9-fred
!arsha--, Principles o Lconomics, 8. ed. 1920 ,reset 1949,, p. 460s.
28
See e.g. !i-ton Fried'anH #eonard " Sa/age, 1he Utility Analysis o Choices Inoling Risk, Journal
o Political Lconomy 56 ,1948,, 29-304, Kenneth " 9rrow, 1he 1heory o Risk Aersion ,1965,, in:
idem, Lssays in the 1heory o Risk-Bearing, 191, p. 90-120, critical !atthew RaAinHRichard H" (ha-er,
Anomalies. Risk Aersion, Journal o Lconomic Perspecties 15 ,2001,, p. 219-232.
29
See below ln. 53.
30
Seminal article: Chaunce0 Starr, Social Beneit ersus 1echnological Risk, Science 165 ,1969,, p.
1232ss.
31
,ik-as #uh'ann, Soziologie des Risikos, 1991, p. 30s.
32
See or this dierentiation !oss, All ,ln. 21,, p. 1ss.
33
See 2at 8J!a--e0, 1he Goernment o Risks, in: 1he Blackwell Companion to Law and Society,
200, p. 292-308 ,295-298,, Henning Sch'idtBSe'isch, Kriminalitt als Risiko. Schadenmanagement
zwischen Strarecht und Versicherung, 2002, p. 19ss, 109ss.
34
1erminology o !oss, All ,ln. 21,, p. 1ss.
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20
lor instance the liability may be shited rom seller to buyer.
35
1his can be
determined by contract between priate market participants or by law enacted by
the goernment. 1he underlying purpose o such a regulation might be moral
arguments o responsibility as well as ultimately to induce the more powerul to
reduce the risk. Another method o shiting risks that has gained prominence in
the last inancial market crisis are utures and deriaties. 1hey shit and diersiy
risk in time and to less risk aerse inestors.
36

3. linally it is possible to spread risks. 1his is especially easible i risks are at
least statistically unaoidable. In this case the risk is usually well known and can be
diersiied by all kinds o insurances as well as by portolio diersiication.
3
Stocks
are another orm o spreading risks and proits. 1he deining element is that this
method reduces indiidual risk but not aggregate or total risk.
38
1he strategy o
spreading risk between dierent persons is the principle o all insurances since the
already mentioned Renaissance sea insurances. 1oday insurances are a uniersal
and common orm o risk management that is amiliar to eeryone rom car and
ire insurances to health insurances. Mostly, this orm o risk-spreading is resered
to the market and its participants who oer all kinds o insurances, een against an
inasion rom Mars. But the goernment also oten proides or insurances
starting with the social insurance system by Otto on Bismarck in the 1880s
39
or
the social security regulations in the New Deal in the United States.
40

III6 P&oble*s of R(s: Mana)e*ent b. t+e P&(1ate Se'to&
In a ree democratic state as well as in a market economy, risk management alls
into the responsibility o the indiidual and the market. 1his is true or all three
mentioned methods equally. Leryone by himsel tries to reduce risks as ar as
possible. One takes care o one`s own health, is interested in sae driing and
aoids inancial risks i possible and easible. Shiting risks is also an essential part
o priate contracts and insurances are mostly oered by the market.
41
But there
are limits or priate risk management due to seeral problems that are speciically
risk related.

35
See also Ste/en Sha/e--, Liability or larm ersus Regulation o Saety, Journal o Legal Studies 13
,1984,, p. 35-34.
36
See 2eter H" Huang, A Normatie Analysis o New linancially Lngineered Deriaties, Southern
Caliornia Law Reiew 3 ,2000,, p. 41-521.
3
1he classical study is Harr0 !" !arko/it=, Portolio Selection: Licient Diersiication o
Inestments, 1959, this method can be used by each indiidual or him- or hersel, while insurances
spread risks interpersonally.
38
See !oss, All ,ln. 21,, p. 29ss.
39
As an introduction see !ichae- Sto--eis, Geschichte des Sozialrechts in Deutschland, 2003, p. 52ss.
40
41
1he rationale or indiidual economic actors to sell and buy risks is not only risk diersiication but
also the act that dierent people hae dierent attitudes toward risk, some being more risk aerse
than others, other reasons are dierential risk assessment and portolio diersiication. See !oss, All
,ln. 21,, p. 34s.

21
1. Some risk related market ailures are well-known since the 19
th
century and
are based on the act o asymmetric inormation.
42
1he problem o aderse
selection was explicitly identiied as term and phenomenon in the ield o lie
insurances.
43
Aderse selection occurs when indiiduals know more than their
insurers about their own leel o risk. \hile a person with a terminal disease only
he himsel knows o may buy a high lie insurance, a person with good risks may
leae the insurance and sae money inesting otherwise. 1his may be countered by
health examination and screening but this can be diicult, expensie or impossible
in certain respects.
44

Len more amous in recent discussions is the problem o moral hazard in
other contexts. It has been discoered in the area o ire insurance, where insured
clients might engage in arson, raud or interested carelessness.
45
Moral hazard may
be deined by the incentie to try to increase the oerall riskiness o an actiity,
that is still controlled by someone while the burden o risks is assigned or shited
to someone else. 1his is oremost an insurance problem but concerns also any
orm o ,orced, bail-out. Although identiied already in the 1860s, its irst
ormalized and systematic treatment in economics occurred only a hundred years
later.
46
1here are also other inormation problems that are not based on
asymmetric inormation but neertheless cause market ailures. 1his is especially
the case i neither party or nobody at all can obtain suicient inormation about
the risk in question and it is not calculable in any way. 1his concerns catastrophes
and disasters which are not predictable and cause extremely high costs. In this case
no one will insure the risk in the market because the inormation does not exist or
is too expensie to acquire.
2. A relatiely new ield o research that has been neglected by economics or a
long time are so-called perception problems which undermine the economic
assumptions o rationality and consistency. 1he groundwork was laid in the early
1920s by lrank Knight who introduced the piotal distinction between risk and
uncertainty. \hile risk inoles measurable probabilities, uncertainty concerns
uncalculable and perhaps een unknown probabilities.
4
1he distinction was
considered irreleant or quite a long time by economists, since it was argued that
precise probabilities were not necessary or an expected utility approach. It was

42
See or the problem o asymmetric inormation in general George 9" 9ker-of, 1he Markets or
Lemons: Quality, Uncertainty and the Market System, Quarterly Journal o Lconomics 84 ,190,, p.
488ss.
43
!oss, All ,ln. 21,, p. 36.
44
See !ichae- Rothschi-dHoseph Stieg-it=, Lquilibrium in Competitie Insurance Markets: An Lssay on
the Lconomics o Imperect Inormation, Quarterly Journal o Lconomics 90 ,196,, p. 629-649, or
the problem o genetic testing in this context see Da/id " Christiansen, Genetic 1esting: Risk
Classiication and Aderse Selection, Journal o Insurance Regulation 15 ,1996,, p. 5-9.
45
See (o' %aker, On the Genealogy o Moral lazard, 1exas Law Reiew 5 ,1996,, p. 23-292
,248s.,, see also or een earlier obserations !oss, All ,ln. 21,, p. 38.
46
Kenneth " 9rrow, Uncertainty and the \elare Lconomics o Medical Care, American Lconomic
Reiew 53 ,1963,, p. 941-93, also in: idem, Lssays ,ln. 28,, p. 1-211.
4
Frank H" Knight, Risk, Uncertainty, and Proit ,1921,, repr. 191, p. 19ss., esp. 233, see also 19s.
\erner leun

22
assumed that it was suicient to base probabilities on subjectie estimates which
could be treated as objectie acts.
48
Subjectie expected utility theory could een
discard i people were completely unaware o objectie existing probabilities. 1his
theory was shattered though by the discoery o the Lllsberg-paradox that showed
that the actual decision een o learned economists iolated the consistency
assumption o this subjectie theory.
49
Since then all kinds o irrational behaiour
concerning perception in decision-making hae been discoered.
50
Lspecially
estimation techniques by indiiduals are biased in seeral respects. Already the
Lllsberg-paradox showed that people try to aoid ambiguous or unknown
probabilities een at the price o inconsistency. 1hey are not only risk but also
ambiguity aerse.
51

lurthermore, indiiduals use mostly heuristic techniques in order to estimate
probabilities, which produce systematic biases.
52
lour problems are especially
striking and common. lirstly as a consequence o general risk aersion people
behae dierently when conronted with the same risk: 1hey take less risks when
choices are ramed in terms o gains and more risks when choices are ramed in
terms o losses, since losses seem more harmul.
53
Secondly people tend to
oerweight the most aailable and memorable inormation regarding the releant
problem. \hile in some cases aailability is useul as a clue or requency quite
oten it leads people to rely on memorable but not representatie inormation. 1he
car accident on the road temporarily raises the subjectie probability o car

48
Fried'anHSa/age, lypothesis ,ln. 2,, p. 463-44, #eonard " Sa/age, 1he loundations o Statistics,
1954 based on Frank R" Ra'se0, 1he loundations o Mathematics, 1931, see or this approach
recently ack Hirsch-eiferHohn G" Ri-e0, 1he Analytics o Uncertainty and Inormation, 1992, p. ss.
who deny consequently any dierence between risk and uncertainty.
49
Danie- E--sAerg, Risk, Ambiguity, and the Saage Axioms, Quarterly Journal o Lconomics 5
,1961,, p. 643-669, Wi--ia' Fe--ner, Distortion o Subjectie Probabilities as a Reaction to Uncertainty,
Quarterly Journal o Lconomics 5 ,1961,, p. 60-689.
50
See or an empirical iew 2au- " H" Schoe'aker, 1he Lxpected Utility Model: Its Variants, Purpose,
Lidence and Limitations, Journal o Lconomic Literature 20 ,1982,, p. 529-563, esp. 541-552,
general critique ens %eckert, \hat is Sociological about Lconomic Sociology Uncertainty and the
Lmbeddedness o Lconomic Action, 1heory and Society 25 ,1996,, p. 802-840.
51
E--sAerg, Risk ,ln. 49,, p. 659-669.
52
Seminal article 9'os (/ersk0HDanie- Kahne'an, Judgment under Uncertainty, leuristics and Biases,
Science 185 ,194,, p. 1124-1131, good short oeriew Danie- Kahne'anH!ark W" Riepe, Aspects o
Inestor Psychology: Belies, Preerences and Biases Inestment Adisors Should Know About,
Journal o Portolio Management 24 ,1998,, 52-65, or the ollowing see the collections o essays:
Danie- Kahne'anH2au- S-o/icH9'os (/ersk0 ,eds.,, Judgment under Uncertainty: leuristics and Biases,
1982, and the sequel Danie- Kahne'anH9'os (/ersk0 ,eds.,, Choices, Values, and lrames, 2000, 2au-
S-o/ic ,ed.,, 1he Perception o Risk, 2000, (ho'as Gi-o/ichHDa-e GriffinHDanie- Kahne'an ,eds.,,
leuristics and Biases, 2002, see also the inluential concept o bounded rationality by HerAert 9"
Si'on, Models o Man. Social and Rational, 195, p. 196-201, ide', Administratie Behaior, 3. ed.
196, p. 80ss.
53
9'os (/ersk0HDanie- Kahne'an, 1he lraming o Decisions and the Psychology o Choice, Science
211 ,1981,, p. 453-458, also in: Judgment ,ln. 52, p. 3-20, on loss aersion itsel ,people alue losses
more than equal sized gains, see 9'os (/ersk0HDanie- Kahne'an, Prospect 1heory: An Analysis o
Decision under Risk, Lconometrica 4 ,199,, p. 263-291, also in: Choices ,ln. 52,, p. 1-43, and by
the same authors, Adances in Prospect 1heory, Journal o Risk and Uncertainty 5 ,1992,, p. 29-
323, also in: Choices ,ln. 52,, p. 44-65.

23
accidents in general.
54
1hirdly research has also obsered an oerconidence and an
optimistic bias concerning the estimation o personal risks.
55
So the ast majority
o driers beliee that they ace lower than aerage odds o getting into accidents.
56

Similar obserations hae been made or work accidents or the personal risk o
unemployment.
5
linally extreme probabilities are usually greatly misjudged. lighly
unlikely eents are either ignored or oerweighted, and the dierence between
high probability and certainty is either neglected or exaggerated.
58
Lxtremely low-
probability but high-consequences eents like natural disasters
59
are thereore
either not insured at all or heaily oerinsured. lurthermore in hindsight past
eents seem ineitable and thereore people tend to beliee that this ineitability
was apparent in oresight.
60
A priate market exchange thereore in many cases will
not be economically optimal.
61
In addition people are ocused on dierent risks,
select risks and disagree about desired prospects. 1hereore risk perception and
management is ery much inluenced by cultural attitudes and predilections. Risk
management decisions thereore oten are a political choice.
62

3. Another category o market ailures is a consequence o goernmental
reactions to certain risks and the speciic inability o priate actors to commit
deinitiely or the uture, which are thereore occasionally termed commitment
problems.
63
1he losses caused by major natural or other kinds o disasters that
aect a substantial number o citizens orce ,democratic, goernment regularly to
assist and compensate the ictims. At the same time the knowledge that
goernment will act correspondingly will discourage people rom purchasing
insurance against such risks. 1his constitutes a dilemma o goernment
responsieness`.
64

54
(/ersk0HKahne'an, Judgment ,ln. 52,, p. 112, see in general seeral essays in: Kahne'an et a-.,
Judgment ,ln. 52,, p. 23ss., Gi-o/ich et a-" leuristics ,ln. 52,, p. 19ss.
55
See the seeral articles in Kahne'an et a-" Judgment ,ln. 52,, p. 28ss., as well as the articles in:
Gi-o/ich et a-" leuristics ,ln. 52,, p. 313ss., shortly Kahne'anHRiepe, Aspects ,ln. 52, p. 53s.
56
8-a S/enson, Are \e All Less Risky and More Skillul 1han Our lellow Driers, Acta Psychologica
4 ,1981,, p. 143-148.
5
,ei- D" Weinstein, Optimistic Biases about Personal Risks, Science 246 ,1989,, p. 1232s., ide', \hy
it \on`t lappen to Me: Perception o Risk lactors and Susceptibility, lealth Psychology 3 ,1984,, p.
431-45, see also W" Kip 3iscusi, 1he Value o Risks to Lie and lealth, Journal o Lconomic
Literature 31 ,1993,, p. 1912-1946, ide', latal 1radeos, 1992, p. 34-50, 51-4.
58
Kahne'anH(/ersk0, Prospect 1heory ,ln. 53,, p. 283.
59
See 2au- S-o/icHHoward KunreutherHGi-AertH F" White, Decision Processes, Rationality and Adjustment
to Natural lazards, in: Sloic, Perception ,ln. 52,, p. 1-32, see also the our articles by 2au-
S-o/icH%aruch FischhoffHSarah #ichtenstein, ibid., p. 32-50, 104-120, 121-136, 13-153.
60
%aruch Fischhoff, lindsight - loresight: 1he Lect o Outcome Knowledge on Judgment Under
Uncertainty, Journal o Lxperimental Psychology: luman Perception and Perormance 1 ,195,, p.
288-299.
61
See generally Kenneth 9rrow, Risk Perception in Psychology and Lconomics, Lconomic Inquiry 20
,1982,, p. 1-9.
62
See !ar0 Doug-asH9aron Wi-da/sk0, Risk and Culture, 1982, who deine risk as a product o
knowledge and consent about the most desired prospects ,p. 5,.
63
64
Dani RodrikHRichard Geckhauser, 1he Dilemma o Goernment Responsieness, Journal o Policy
Analysis and Management ,1988,, p. 601-620, see also Stephen Coate, Altruism, the Samaritan`s
Dilemma, and Goernment 1ranser Policy, American Lconomic Reiew 85 ,1995,, p. 46-5.
\erner leun

24
It is an implicit market ailure that indiiduals in one generation cannot trade
with those o another ,not yet born,. 1here is no binding commitment o uture
generations by current market participants.
65
1his concerns especially so-called
systematic risks that are deined by the act that they cannot be diersiied at any
moment in time. A risk that aects just about eeryone at the same time cannot be
spread at all.
66
1hereore, a massie nuclear war is not insurable in the priate
sector and neither the risk o macroeconomic booms and busts. Systematic risk
cannot be spread at the point in time it is happening but might be diersiiable
across time although not by priate market participants. 1hat is why in these cases
the goernment steps in.
Another commitment problem is created by regulation. It is the law in all
modern economies that anybody may go bankrupt and ile or protection in
bankruptcy. 1hereore, nobody can commit not to deault on its uture obligations.
In most market transactions, this problem is manageable but may be a speciic
problem or the indiidual inestment in priate pension unds since een low
probability o ailure stopped people rom joining such unds or their complete
lietime saings. It is thereore one o the essential justiications o public social
security systems.
6
1he right to deault is an additional reason or another
commitment problem that is called the inalienability o human capital. In modern
ree market economies, human capital is inalienable because indiiduals cannot
credibly commit to turn oer their uture income to others since they neither may
waie their right to go bankrupt nor sell their working power into slaery. luman
capital is thereore a non-tradeable asset and risks regarding human capital are not
diersiiable because they cannot be sold or bought. 1he diersiication o human
capital risks requires thereore goernment interention through social security
systems.
68

4. A urther source o risk management problems by the priate sector are
externalities. Lxternalities as such are not restricted to risk problems but a general
cause o market ailures.
69
1o a great extent, externalities can be also related to
speciic risks. In terms o risk, externalities may be seen as a quasi-automatic shit
o risks to the general public. In this respect pollution creates risks or
communities and the car traic by anybody heightens the risk o injury and losses

65
oseph E" Stieg-it=, On the Releance or Irreleance o Public linancial Policy: Indexation, Price
Rigidities and Optimal Monetary Policies, in: Rdiger Dornbusch,Mario lenrique Simonsen ,eds.,,
Inlation, Debt, and Indexation, 1983, p. 183-222 ,186,, see also 2"9" Dia'ond, A lramework or
Social Security Analysis, Journal o Public Lconomics 8 ,19,, p. 25-298 ,29-281,.
66
!oss, All ,ln. 21,, p. 46s., systematic risk must be dierentiated rom systemic risk where a
complete system is aected by a ailure o one single unit: like the banking system may aected by
the bankruptcy o one large bank, see !artin He--wig, Risiken im linanzsektor, Zeitschrit r
\irtschats- und Sozialwissenschaten, Beihet ,1998,, p. 123-151.
6
!oss, All ,ln. 21,, p. 4, see also Dia'ond, lramework ,ln. 65,, p. 289ss.
68
RoAert C" !erton, On the Role o Social Security as a Means or Licient Risk Sharing in an
Lconomy \here luman Capital is Not 1radeable, NBLR \orking Paper 43 ,Sept. 1981,.
69
As an introduction see classical 9rthur C" 2igou, \ealth and \elare, 1912, p. 162-165, ide', 1he
Lconomics o \elare ,1920,, 4. ed. 1932, p. 131-135, 12-212.

25
or other driers and pedestrians. Making car insurance mandatory means to orce
driers to assume responsibility or the risk incurred by using a car
0
which is made
transparent by the speciic orm o car insurance in Germany.
A special source o risks comes into play where indiidual behaior is to a
certain extent rational, but on the collectie leel leads to irrational results by
increasing risks and losses. 1his is especially true or economic downturns, where a
sinking demand reduces supply, which reduces demand again and so orth.
1
In
case o a inancial panic, ear o losses may become contagious and ollowing bank
runs may destroy een sound banks.
2
I nerous depositors withdraw their money
abortiely, they inlict costs on other depositors, banks and inestors and increase
the oerall leel o risk. 1his process may een result in a systemic risk or the
whole inancial system as could be obsered in the last inancial crisis.
3

1he premature and hasty withdrawal o bank deposits can be also
conceptualized as externalities imposed on the other depositors. 1he main aspect
though is the collectie mania and the circle o eedbacks that aggraates the crisis
and heightens the risks.
4
It is almost unmanageable by the priate sector itsel and
requires goernment action.
IV6 T+e Role of o1e&n*ent as Ult(*ate R(s: Mana)e&
1he role o goernment in a political system depends on the preerred economic
system. All \estern political systems hae opted essentially or a market system. In
such a system the goernment has speciic unctions in order to compensate or
market ailures.
5
1hese unctions are based on seeral speciic capabilities o
goernment, which priate market participants do not dispose o. 1he main assets
o goernment are the powers to compel by law and to enorce its decisions with
legitimate orce as well as its economic powers to tax, to print money and as their
consequence the special credit power goernments enjoy. Goernments are able to
mobilise capital to such an extent that een the most rich and powerul priate
subjects are not capable to achiee. In addition the goernment has an extensie
bureaucratic apparatus that combines specialized knowledge with a high capacity to
sole problems o any kind.
6
1hese capabilites o goernment in general are the
oundation o its role as an ultimate risk manager.
Its classical unction o risk

0
!oss, All ,ln. 21,, p. 48.
1
See Werner Heun, Staatshaushalt und Staatsleitung, 1989, p. 124s.
2
1he risk o bank runs is the justiication or central banks as lender o last resort, see Werner Heun,
Die Zentralbank der USA - das lederal Resere System, Staatswissenschat und Staatspraxis 9
,1998,, p. 241-281 ,248s.,.
3
See Werner Heun, Der Staat und die linanzkrise, Juristenzeitung 2010, p. 53-62.
4
!oss, All ,ln. 21,, p. 49 who also obseres that in this case an insurance may not only spread risk
but een reduce the aggregate risk.
5
Classical general oeriew Richard !usgra/eH2egg0 %" !usgra/e, Public linance in 1heory and
Practice, 4. ed. 1984, p. ss., see also Kar- Ho'annH9ndreas Suchanek, Okonomik, 2000, p. 20ss.
6
See Renate !a0nt=, Soziologie der Verwaltung, 4. ed. 198, p. 82ss.
See also !oss, All ,ln. 21,, p. 49ss.

\erner leun

26
reduction and preention by law and its enorcement is mainly part o its
traditional police powers and perades many dierent goernmental actiities.
8

1he reduction o collectie risks is the natural obligation o goernment. 1he
goernment has also a major role in shiting and spreading risks. Its regulatory
powers can compel current citizens and uture generations to participate in
insurance programs or establish goernmental insurances.
9
1he goernment can
ight aderse selection by compelling broad participation and preenting any
opting out by good risk participants. Social security systems and obligatory car
insurances are a prime example. 1he goernment unctions to a certain extent as
an insurance against major risks like war and natural or man made catastrophes as
a consequence o its economic powers and its almost inexhaustible asset base as
well as the act that it can tax into the uture. 1axes are sometimes justiied by the
idea that the state acts as an insurance.
80
1he lending acilities o central banks as
banks o last resort as well as their power to supply the economy with money also
act as a kind o insurance. As a consequence o its inestigatie and enorcement
capabilities, the goernment may control and monitor moral hazard. 1he
underestimation o risk because o perception problems can be countered by
proiding inormation and by compelling people to buy the necessary insurance
like a car or ire insurance. 1he obligatory social insurance against unemployment
is another example. lurthermore, the goernment can internalize externalities that
cause risks by liability rules as well as taxes. It may shit risks by liability rules in
order to make the more competent or more wealthy responsible or risk reduction.
In this perspectie o risk management the traditional dierentiation between
public and priate law is almost irreleant. Liability rules, insurance regulations and
een saety rules may be enacted in either orm. Only the enorcement by
administratie agencies or the goernment requires a regulation by public law.
Goernment is not only a necessary complement and counter orce to markets
but also an important source o ailures, howeer.
81
Regulation by law and its
enorcement create costs that may surpass the costs o risk.
82
Perception problems
may also aect the bureaucracy. Democratic responsieness o political actors may
transer the perception problems o the general population into the sphere o
goernment as can be seen in the case o oerestimated nuclear risks. 1he political
process oten tends to a wrong ocus on worst-case scenarios. 1he perception o
risks by the people and the ensuing risk management depends ery much on the
ragile trust in experts and public authorities.
83
Risk reduction by goernment is

8
See 2eterB(oAias Sto--, Sicherheit als Augabe on Staat und Gesellschat, 2003, p. 13-263, or the
general problem o risk regulation in the U.S.A. see Stephen %re0er, Breaking the Vicious Circle, 1993.
9
lor this see Ho'annHSuchanek, Okonomik ,ln. 5,, p. 212ss, !ark R" Greene, 1he Goernment as
an Insurer, Journal o Insurance 43 ,196,, p. 393-40.
80
1his is maintained by the Assekuranz ,insurance, theory o taxes, see Friedrich Kar- !ann,
Steuerpolitische Ideale, 193 ,repr. 198,, p. 106-111.
81
See Horst Hanusch ,Ld.,, Anatomy o Goernment Deiciencies, 1983, !artin Knicke,
Staatsersagen, 1984, p. 50ss.
82
See Richard " GeckhauserHW" Kip 3iscusi, Risk within Reason, Science 248 ,1990,, p. 559-564.
83
See 2au- S-o/ic, Perceied Risk, 1rust and Democracy, in: idem, Perception ,ln. 52,, p. 316-326.

2
oten ineicient.
84
Liability rules may distort market mechanisms and insurance
schemes may promote moral hazard. All these goernment ailures do not make
goernmental risk management superluous or generally harmul. On the contrary,
a comprehensie risk management by goernment is an indispensable element o
any market system, but one has also always to consider the possibilities o
goernment ailure.
V6 Const(t-t(onal D(&e't(ons fo& o1e&n*ental R(s:
Mana)e*ent
At this point it is only possible to gie a broad oeriew and a ew sketches o the
constitutional ramework o risk management by the goernment in Germany.
1. 1he undamental rights o the Basic Law constitute a legal bias
85
or risk
bearing and risk management by the indiidual citizens themseles and by priate
corporations. 1hey may reduce or reallocate risks especially by priate contracts.
Risk shiting by contract and risk spreading by all kinds o priate insurances is
thereore ubiquitous. 1he goernment may reduce or reallocate risks by interering
into market processes but each goernmental interention has to be justiied by
legitimate and plausible reasons and to obsere the constitutional requirements as
oremost the proportionality principle.
86
Risk reduction and the purposes o risk
reallocation are such reasons that justiy encroachments into the guaranteed
liberties.
2. 1he Basic Law does not oblige the goernment to shit or spread risks at all.
One may construe one exception or the case o social security which is authorized
by seeral constitutional proisions and also underlined by the general social state
principle that entails only a certain guarantee o the institution as such and limits
modiications o the social security system but contains no detailed directies.
8

Constitutional obligations, mostly deried rom undamental rights,
88
require at
best risk reduction. 1his corresponds to the ocus on risk reduction since the 19
th

century as exempliied in police law. 1he Constitution itsel neglects risk shiting
and spreading in general while the ordinary law entails a substantial amount o risk
reallocation regulations, liability rules as well as insurance legislation.
3. 1he Constitution thereore proides practically no explicit but only indirect
obligations. Len public saety as such and the protection against imminent
dangers and risks are not explicitly guaranteed by the Basic Law, although their

84
See Richard " GeckhauserHW" Kip 3iscusi, 1he Risk Management Dilemma, 1he Annals o the
American Academy o Political and Social Science 445 ,1996,, p. 144-155.
85
C. Car- Sch'itt, Verassungslehre ,1928,, 5. ed. 190, p. 126, 158, 164.
86
Short oeriew in Lnglish by Werner Heun, 1he Constitution o Germany, 2010, p. 192ss.
8
lor details see Ro-f Gr&schner, in: l. Dreier ,ed.,, GG-Kommentar, ol. 2, 2. ed. 2006, Art. 20
,Sozialstaat,, Rn. 44, Hans !ichae- Heinig, Der Sozialstaat im Dienst der lreiheit, 2008, 10ss., 45ss.
88
Short oeriew Heun, Constitution ,ln. 86,, p. 199s., or details see Georg Her'es, Das Grundrecht
au Schutz on Leben und Gesundheit, 198, ohannes Diet-ein, Die Lehre on den grundrechtlichen
Schutzplichten, 2. ed. 2005.
\erner leun

28
proision and saeguard is the essential unction o goernment in the modern
state.
89
1his unction was taken or granted and considered too diicult to
guarantee so that it was omitted.
90
1he Constitutional Court only in the seenties
started to construe a constitutional right to saety ,Grundrecht au Sicherheit,
although it does not use this phrase.
91
1he goernmental duty to protect lie and
physical integrity is deried rom the undamental right o human dignity in
combination with the right to lie. loweer, a duty to protect property against
risks has not been deried rom Art. 14 B.L. yet.
92

\hile the Constitution does not oblige the goernment to manage risk it
authorizes the goernment to dierent orms o risk management and gies broad
discretion to decide whether and how to deal with risks. 1his is mainly true een
or the obligation to protect the undamental rights o the citizens against
encroachment by ,priate, third parties since it does not require the goernment to
protect its citizens with deinite measures. It obliges to act at all but not how to act.
But the indiidual rights o other indiiduals as well as general constitutional
principles justiy ar reaching encroachments by goernmental regulation. In
summary the Basic Law gies broad authorization without obligation. It also
authorizes to regulate and establish a social insurance system ,Art. 4 No 12 B.L.,
and the social state principle correspondingly justiies encroachments into the
citizens` indiidual rights in this respect. 1his principle protects the established
social insurance system against complete abolition but not against undamental
modiication although indiidual entitlements are also protected to a certain extent
by the property clause o Art. 14 B.L. against withdrawal.
93
Mostly the protection
against encroachments is een weaker. 1he general authorization to enact ciil laws
allows or risk shiting by liability rules, either restricting or creating liability or
priate subjects. 1he authorization neither obliges the goernment nor protects the
indiidual. 1he Constitution also does not substantially limit the reallocation o
risks by taxes or insurances but neither obliges the goernment in this respect.
1he oeriew o the constitutional ramework reeals a great discrepancy
between the actual role o goernment in risk management, that is hardly to
oerestimate, and the relection o this role in the Constitution. 1he scarcity o
proisions and indeterminacy o the risk management by constitutional directies
is not astounding though, i one considers the wide ariety o the problems o risk
management. 1here is an almost unlimited discretion or goernment to reduce

89
1he study by Sto--, Sicherheit ,ln. 8, ocuses almost only on risk reduction, but at least mentions
public accident insurance, p. 31ss.
90
A ew original State constitutions in the USA mention public saety, see e.g. the Virginia Bill o
Rights o 16, 3.
91
1he term is has been coined by 1sensee, Grundrecht ,ln. 2,, p. 2ss., see also Gerhard RoAAers,
Sicherheit als Menschenrecht, 198, p. 121ss.
92
1he omission o a guarantee o saety has not stopped scholars rom construing such a
constitutional guarantee that is not restricted to the already problematic right to saety, see esp.
!arkus !&st-, Die staatliche Garantie r die oentliche Sicherheit und Ordnung, 2002, p. 24-28, 3-
146.
93
See oachi' Wie-and, in: l. Dreier ,ed.,, GG-Kommentar, ol. 1, 2. ed. 2004, Art. 14 Rn. 61ss.

29
risks, to regulate risks, to shit risks by liability rules and taxation, to spread risks by
establishing state insurances or creating obligations to join certain priately
organized insurances. 1he constitutional determination o the whole ield o risk is
comparatiely weak. 1his legal situation is justiied by the extreme complexity o
risk management as well as the act that the Constitutional Court has no speciic
capability to assess risks or to gie directies or risk management. 1he eeble
determination o goernmental risk management by the Constitution is thereore
necessary and not a act that is to deplore.

Info&*at(on as t+e 4as(s of Pa&l(a*enta&.
Res8ons(b(l(t. fo& E-&o8ean Inte)&at(on
Frank Schorkopf
Sixty years ater the promulgation o the German constitution, which was
underlined by a isionary openness towards Lurope` rom the ery beginning, the
German lederal Constitutional Court reassessed the historic process o Luropean
integration on June 30, 2009.
1
1he Court reiewed the compatibility o the legal
oundations o the Luropean Union with the German Basic Law ,Grundgeset=,. 1he
1reaty o Lisbon is compatible with the Basic Law, the Court`s Second Senate
ruled, as long as it is applied within the ramework outlined by the lederal
Constitutional Court. Neertheless, the German implementation law is
inconsistent with the Basic Law.
I will not speak about this landmark judgment that has been complemented a
ew weeks ago by another remarkable judgment. Although it inuriated large parts
o Luropean political elites, sparked discussion among legal scholars, ongoing, and
includes many arguments worth being discussed,
2
it is only the background or our
general topic. loweer, the ruling has pointed to a major problem o Luropean as
well as international political cooperation, i.e. the parliamentary responsibility or
goernmental and legislatie acts determined by Luropean or international law.
\ithin this context I will ocus on inormation - our common denominator within
this conerence - as a prerequisite or parliamentary responsibility.

1
BVerGL 123, 26 . - Lisbon.
2
See the contributions by Mollers,lalbestam, Schonberger, 1omuschat, Niedobitek, Klier and
Schorkop in German Law Journal, Special Issue, 10 ,2009,, pp 1201 ,www.germanlawjournal.com,,
as well as 1hym, Common Market Law Reiew 46 ,2009,, 195.
lrank Schorkop

32
I6 Inte&nat(onal La/ Ma:(n): !ee8(n) Pa&l(a*ents (n Pla.
1he connection between the aailability o inormation and parliamentary
responsibility is best illustrated by the classical problem o 1reaty ratiication. 1his
classical problem stems rom public international law, where national parliaments
hae been and still are being conronted with ully negotiated treaties. A ew
months ago we saw the Russian und the US President signing a new disarmament
agreement in Prague. 1he ceremony illustrated that international treaties are not
only negotiated but also signed by the executies beore they are transerred to the
legislator. Parliaments are asked by goernments to ratiy the treaty. It does not
need urther explanation that these international legal acts cannot be amended in
substance at that stage without utmost diplomatic skills and at high political cost.
I speak about the so called ratiication situation ,Ratifikations-age, in which
parliaments may only choose between digital categories o yes` and no`. Some
national jurisdictions hae ameliorated the situation by inoling members o
parliament in the negotiation process. 1his concession made by the executie has
the major aim to spread inormation about the negotiations, its expected outcome
and the whole political situation within parliament. It is an unusual step because
the realm o goernmental negotiations is normally kept ree rom potential
troublemakers.
Another strategy, applied by the US Congress, is the parliamentary adoption o
a mandate or the negotiation. 1he mandate deines a corridor o possible
solutions, which Parliament is willing to accept, as long as the executie produces a
inal result that is situated within the political parameters ,ast-track-procedure,. In
the Luropean Union the problem is dierent. O course, the major sources o
Luropean primary law, the 1reaties o Paris, Rome, Maastricht, Amsterdam, Nice
and Lisbon, are treaties goerned by public international law. 1hey all within the
scope o the classical problem already mentioned.
Luropean integration, howeer, adds a second dimension to the problem o
disseminating inormation on international legal actiities to parliaments. 1he
Luropean Union is empowered to adopt secondary rules on the basis o its treaty
architecture. \ou all know about the hundreds o regulations on agriculture,
custom and trade and competition matters, and about the thousands o directies
dealing with the internal market aairs, consumer and enironmental protection.
1he Luropean legal order has its own mechanisms o identiying, discussing and
soling social problems and its own machinery o goernance. 1his machinery
produces Luropean law under ull autonomy rom the national legal orders. 1he
executies are participating due to their membership in the Council. Until recently
national parliaments had been ully excluded rom Luropean law-making - their
institutional position being substituted by the Luropean Parliament.
1his institutional exclusion is conronted with a strong substantial
inolement. National parliaments are obliged to transer Luropean directies into
national legal order and they typically hae no substantial leeway within this task.
Inormation as the Basis o Parliamentary Responsibility or Luropean Integration

33
Moreoer, national parliaments are conronted with a comprehensie regulatory
body that challenges national competence in addressing social problems. In other
words, parliaments hae to orm an opinion in most issues o Luropean
integration regardless o the act how the competences between the LU and the
Member States are allocated.
II6 A&t('le 2$ 4as(' La/
In order to orm such an opinion, or the purpose either o preparing national
legislation or addressing a social problem politically, parliaments need inormation.
In the early days o Luropean integration this subject has almost had no releance.
Luropean integration was perceied as a mixture o classic intergoernmental
cooperation and Luropean oreign aairs in which the prerogatie o the executie
preailed. It was not until 1992 when the German %undestag, and the State
chamber, the %undesrat, ehemently demanded a more deeper inolement in the
Luropean decision making process. Lspecially the German ederal states ,#Knder,
made disturbing experiences with Luropean law making when the German lederal
Goernment in 1989 accepted the directie 89,552,LLC on the coordination o
certain proisions concerning the pursuit o teleision broadcasting actiities. 1he
directie coered core competences o the #Knder ,lausgut, and adopted a political
stance that wasn`t compatible with the law o the land at that time. Len worse,
the lederal Goernment was acting in Brussels behind closed doors in a ield o
competence that belongs to the inner-sanctum o the #Knder.
A consequence was the amendment o the Grundgesetz in 1993 introducing a
new proision or the goernance o Luropean integration.
3
Art. 23 GG addressed
not only the constitutional preconditions or the continuing participation in the
deelopment o the Luropean Union but restructured the internal cooperation o
%undesregierung, %undestag and %undesrat in Luropean matters.
I will not direct your attention to details o this constitutional proision except
one section that is releant or our academic interest in inormation as basic
resource or parliamentary responsibility. 1he %undestag receied the constitutional
right to state its position beore the German Goernment participates in legislatie
acts o the LU ,Art. 23,3, GG,. 1his right, o course, can only be exercised
properly i Parliament is in possession o all releant inormation beyond what is
known to eerybody rom reading newspapers thoroughly. lence, according to
the Basic Law, the goernment shall keep the %undestag inormed,
comprehensiely and at the earliest possible time ,Art. 23,2, GG,.
Details o the duty to inorm are regulated by a law ,Geset= Aer die
Gusa''enarAeit /on %undesregierung und Deutsche' %undestag in 9nge-egenheiten der

3
lor details o the legislatie process and the preliminary deelopments see Schorkop, in:
Dolzer,\aldho,Kahl,Gra|ho ,eds.,, Bonner Kommentar, 2011, Article 23 paras 1.
lrank Schorkop

34
EuropKischen .nion,.
4
1his law states that the lederal Goernment shall brie the
Bundestag on an ongoing basis, normally in writing, on all projects relating to the
Luropean Union which could be o interest to Germany. Speciically, the lederal
Goernment shall or this purpose proide the %undestag with the material in its
possession concerning drated regulations and directies.
1he brieing includes the decision making process within the cabinet, the
statements by the Luropean Parliament, by the Luropean Commission and by
other Member States as well as any decisions already made. 1he lederal
Goernment shall proide the %undestag with the documents at the earliest possible
moment, i necessary erbally, and by the shortest possible route. 1he duty to
disseminate inormation on Luropean integration matters coers almost all
measures - the law enlists altogether ourteen positions reaching rom initiaties to
communication, green and white book to reports. 1hey exclude only measures in
the ield o oreign and security policy. Inormation, there is no doubt, is the
source or legislatie participation in the Luropean integration.
In the past the Goernment was cautious to delier comprehensie
inormation in due course in all cases under any circumstances. Because
Parliament` is a category o constitutional law, meaning the legislatie body in the
machinery o goernment. Looking through the spectacles o politics Parliament`
does also mean opposition. Any piece o inormation transerred to Parliament
has to be gien to all political groups irrespectie o their position as goernmental
party or member o the opposition. 1his problem o parliamentary democracy has
not anished but lost its impetus. 1he %undestag became aware across its political
spectrum that in many cases the institution as such was moed to the back seat.
III6 Res8ons(b(l(t. fo& Inte)&at(on
lrom 1993 the %undestag has constantly tightened the rules aiming to be proided
with inormation on Luropean matters. Neertheless, the lederal Constitutional
Court assessed parts o the so called Lxtending Act, intended to ratiy the Lisbon
1reaty, as unconstitutional. By reiewing the Lxtending Act the Court had to deal
with the machinery o goernment ,Staatsorganisation,. It came to the conclusion
that the %undestag needs urther opportunities to draw consequences rom the
experiences gathered rom ongoing integration process. 1he Court introduced in
this respect a new concept o responsibility or integration ,1ntegrations/erantwortung,
into constitutional law.
1he responsibility or integration deals with the classical problem I mentioned
earlier. 1reaties under international law can create a dynamic system o rules by
authorising the contractual bodies to enact secondary law or by legitimising

4
Gesetz ber die Zusammenarbeit on Bundesregierung und Deutschem Bundestag in
Angelegenheiten der Luropischen Union, BGBl. 1993 I, 311 - as amended by law o 22 September
2009, BGBl. I, 3026.

35
political decisions interpreting and adancing the treaty proisions. Keeping the
parliament inoled in the eolutionary process the lack in predictability o such
treaty-based deelopments should be compensated. I the legitimization o
supranational secondary acts cannot be constructed directly, at least the institution
with the greatest base o legitimacy should be inoled indirectly to a maximum.
1he responsibility or integration takes up the thought o democratic
responsieness. 1he delegates are elected directly by the people and are answerable
to the people in the political process and in elections.
1he #isAon Case introduced the responsibility or integration into Germany`s
oreign relations law that is ocussed on Lurope. Lery constitutional body,
including the lederal Constitutional Court, has the responsibility to assume its own
institutionally speciic responsibility in the integration process. 1he Court
explained: It is aimed to ensure, regarding the transer o soereign powers and
the elaboration o the Luropean decision-making procedures, that in an oerall
iew, the political system o the lederal Republic o Germany as well as that o the
Luropean Union comply with democratic principles under the Basic Law.`
In the centre o the Court`s reasoning is the %undestag" 1he Court declared the
implementation law to the 1reaty o Lisbon incompatible with the Basic Law
because the enisioned parliamentary participation did not proide a suicient
leel o responsibility. 1he legislatie bodies can only actualize their competences
with a law or a constituent decision. 1he legislatie organs must decide whether
the leel o democratic authentication is suicient or whether the primary law
must be changed accordingly, or whether it is not possible at all to act on a
Luropean leel.
1he responsibility or integration lies with the constitutional bodies, which
must pursue it in line with their competence in supra-national aairs. 1he %undestag
is substantially strengthened by additional reserations in decision-making. And it
looks as i the #isAon Case has strengthened the position o the %undestag at the
expense o the lederal Goernment. It will certainly be noticed with concern in
the Chancellery and in particular in the loreign Oice, that the prerogatie o the
executie in oreign aairs, thereore also the cooperation at Luropean Union leel
has lost ground relatie to its traditional position. Ater the #isAon Case the
%undestag will be able to gie the lederal Goernment directies concerning the
oting behaiour o the German representatie in the Council.
Basically the lederal Constitutional Court drew only the conclusions rom a
deelopment that changed the standard way o policy-making and legislation.
Initially, the Basic Law expected supranational and international decision-making
as limited exceptions in comparison to national acts and regulations - nowadays
cross-border regulation has become an alternatie measure o shaping policy. 1he
stronger inolement o the %undestag in Luropean legislation compensates or the
decreasing possibility o parliamentary ine-tuning. 1he political responsibility
remains constitutionally with the directly elected Parliament that must stand up to
its citizen and to the public or its actions.
lrank Schorkop

36
1aking into regard the paramount position o the goernment, the ear is
unounded that oreign power will become a matter o concerted actions o
parliament and goernment. It is uncertain whether this path will result in dierent
decisions or in a higher acceptance o Luropean actions. 1he outcome depends on
whether the members o the %undestag will enture and demand what is
constitutionally possible. 1he parliamentary system o goernment - with its
structural combination o goernment and parliamentary majority - has the ability
to counteract parliamentary sel-conidence and independence.
\hat did Parliament do ater the Lisbon judgment 1he %undestag has adopted
a new accompanying law at once. In September 2009 it enacted - almost without
goernmental support, as was mentioned with some pride - a new Act on
Responsibility or Integration ,1ntegrations/erantwortungsgeset=,.
5
1he law implemented
the Court`s indings in detail. Legal and political responsibility o Parliament is not
restricted to a single act o approal but extends to its urther execution. Silence on
the part o the %undestag and the %undesrat is thereore not suicient or exercising
this responsibility. Neertheless, the precondition to assume Parliament`s
responsibility is rapid and comprehensie inormation on Luropean aairs.
IV6 Nat(onal Pa&l(a*ents (n EU Ma'+(ne&. of o1e&n*ent
A second major new instrument, that is constructed by LU law itsel, is the
inolement o national parliaments in the control o how Luropean competences
are executed. 1he national parliaments contribute actiely to the good unctioning
o the Union ,Art. 12 1LU,.
Drat legislatie acts o the Luropean Union must be made aailable to the
national parliaments eight weeks beore they are placed on the Councils agenda
,Art. 4 o Protocol no. 1 on the Role o National Parliaments in the LU,. In the
context o what is known as the early warning system proided or by so called
Subsidiarity Protocol to the Lisbon 1reaty, any national parliament or any chamber
o a national parliament may, within this eight-week period, state in a reasoned
opinion why it considers that the drats in question do not comply with the
principle o subsidiarity ,Art. 6 Subsidiarity Prot.,.
6

Such reasoned opinions, howeer, only establish an obligation to reiew the
drats where they represent a certain proportion o all the otes allocated to the
national parliaments. lurthermore, any national parliament ,or a chamber, thereo

5
Gesetz ber die \ahrnehmung der Integrationserantwortung des Bundestages und des
Bundesrates in Angelegenheiten der Luropischen Union, BGBl. 2009 I, 3022 - as amended by law o
1 December 2009, BGBl. I, 3822.
6
on Danwitz, Der Mehrwert des gemeinsamen landelns, lrankurter Allgemeine Zeitung, 23
October 2008, 8, Uerpmann-\ittzack, lrhwarnsystem und Subsidiarittsklage im deutschen
Verassungssystem, Luropische Grundrechtezeitschrit 2009, 461, Schtze, Subsidiarity ater
Lisbon: Reinorcing the Saeguards o lederalism, 1he Cambridge Law Journal 68 ,2009,, 525.

3
may bring an action to hae declared an act oid ia their Member States i they
deem a legislatie act incompatible with the principle o subsidiarity.
1his procedure gained some attention in autumn 2010. 1he Bundestag decided
to trigger the early warning mechanism or the irst time. 1he Commission put
orward a proposal or harmonising the deposit protection. 1he planned law would
diminish the leel o protection as proided by the German scheme in orce. 1he
political groups in the Bundestag were not able to organise the required number o
critical oices and terminated the procedure.
7

Moreoer, the national parliaments are inoled in the political monitoring o
the Luropean Bureau o Inestigation ,Luropol, and the Luropean Judicial
Cooperation Body ,Lurojust, ,Art. 12 lit c 1LU, Art. 88.2,2,, Art. 85.1,3, 1lLU,.
1hey are also entitled in what is known as the bridging procedure, a treaty
amendment procedure generally introduced by the 1reaty o Lisbon, to make
known their opposition to the treaty amendment proposed by the Commission
within six months ater their being notiied o it ,Art. 48.,3, 1LU Lisbon,
Art. 81.3,3, 1lLU,. Opposition by a single national parliament is suicient or
making the proposed treaty amendment ail.
V6 E1al-at(n) Info&*at(on
1he central problem o inormation as basis or parliamentary responsibility is its
classiication. Not in the sense that the inormation gien by the lederal
Goernment to the %undestag should be kept more or less secret. 1he problem is
the mere quantity o the pieces o data that are transerred day by day to the
members o Parliament.
1he Goernment sends all pieces o inormation aailable at the executie
branch and Parliament has to ind its way through the piles o paper. A clerk
reported that the daily receied documents aerage to the length o one meter.
1his general rule is the result o bad experiences in the past when the executie
decided what documents were releant or the legislature. It also relects the
uneasiness with a political process on another institutional leel o public power.
\ou neer know or sure i a certain green paper or a speciic communication is a
key document.
1he heay workload rom Brussels is added to the classical obligations o a
national parliament. 1he law-making did not diminish because the %undestag has to
keep pace with Luropean integration. On the contrary, parliaments o LU Member
States hae to ulil the duty to implement Luropean directies within a general
climate o accelerated law making in the age o inormation society. 1o put it in
other words: the %undestag - as well as other national parliaments - is structurally

Deutscher Bundestag, Drucksache 1,3239, linancial 1imes Deutschland, 22 October 2010,

http:,,www.td.de,politik,europa,:eu-kommission-ruege-wegen-spareinlagen-
scheitert,5018546.html.
lrank Schorkop

38
oer-burdened. A constitutional lawyer might - at this point o my argument -
draw our attention to the act that parliaments are able to organise their work
independently. Parliaments do not need to ask the goernment or anybody else to
establish new committees, to heir additional sta or to reshape the procedures o
decision making. Beeing the master o the budget they are een entitled to allocate
the necessary inancial means.
1he German %undestag has acted respectiely. 1he louse introduced a
Committee on the Luropean Union ,Art. 45 GG, that can be authorised to
exercise the rights o the %undestag under Art. 23 is-a-is the lederal Goernment.
But the plenary has not decided in this direction yet. 1he traditional committees on
the one hand seek to maintain their political position, on the other hand they are
required to engage as many bodies as possible in order to diide workload and to
proide the legislatie process with well-inormed political characters. In the past, I
was told, the Luropean Committee was more or less the reseroir o Luropeanised
talkatie backbenchers. I think the sel-perception o institutionalised Luropean
politics has already changed.
1he %undestag also established a bureau at Brussels staed with clerks rom the
parliamentary administration in order to collect inormation at the source, to
deliberate, to administer the Luropean political landscape.
8
lor many public
commentators this step was irritating because it made obious that the ormal
mechanism o disseminating inormation rom Brussels to the capitals o Member
States is not suicient in political day-to-day business. 1he time actor might play
an important role, as you need insight into the thinking o the Commission and the
Luropean Parliament beore a document is drated. 1he inormation mechanisms
are all based on paper inormation and thereore tend to be behind time, causing
problems as in the ealuation o inormation, to mention only one.
\hat is or should be important to a national parliament is a political question
depending on the current state o aairs and depending on a respectie decision by
members o parliament. 1hese members are located at home, back in Berlin, Paris,
\arsaw or London, inoled in national politics and responding to the demands
o predominantly national media. 1he classiication o inormation is carried out
by clerks i.e. ciil serants that hae to be neutral. 1heir unctioning as agents
rather than as personal assistants leads to a rising tide o documents coming on top
o the pieces already distributed by the goernment.

8
lor urther inormation about the establishment o the bureau see Deutscher Bundestag, Bundestag
und Luropa, p. 26, aailable at https:,,www.btg-bestellserice.de,pd,10090000.pd.

39
VI6 Con'l-s(on
Inormation as the Basis o parliamentary responsibility or Luropean integration
has been disregarded or decades. Since the oundation o the Luropean Union in
1993 the problem has been spotted and solutions hae been undertaken.
An abundance o constitutional law has been created, namely the Grundgeset=
amendment o 1993 that introduced Art. 23 and its Lxtending Acts, but this has
primarily increased the amount o paper transerred to the German %undestag. 1he
problem o classiying inormation according to its releance or the national
political space is unsoled. 1o my mind this problem is built in the structure o the
Luropean political process and it shall be compensated not by strengthening the
national but by strengthening the Luropean Parliament. 1he latter is been regarded
as the proper representatie o LU citizens. loweer, as long as this institution is
not rooted in the public sphere the same way national parliaments are, and is not
addressed by citizens as political body responsible or the common good, we hae
to improe the mechanisms and institutions disseminating inormation to
Parliament.

T+e R()+t to I)no&an'e (n Me5('(ne

Gunnar Duttge
I6 A*b(1alen'e of !no/le5)e
Knowledge is Power`
1
- Knowledge liberates`
2
: lollowing this credo, present
day modern society still today points one on a journey towards a way out o sel-
inlicted sheepishness`
3
with incessant optimism. Nothing less shall apply to an
indiidual than applies to the enlightened` public as an indication o their
dependable progress`
4
: New discoeries, lately increasingly regarding our own
species ,only think about the research and exploration o DNA or recently o the
brain,, inentions, and new technical innoations, which make lie easier ,e.g. drugs
in the context o medicine, or broaden the natural-gien scope o action ,e.g. in-
itro-ertilization,, ollowing utopias o an unblemished` world ,especially in the
area o regeneratie medicine, and regarding relentless work towards these utopias
as a matter o course.
Correspondingly, modern society sees merely positie potential in the
persistent and lie-long strie or more inormation and the widening o one`s own

1his is a reised ersion o the paper published in the Journal Datenschut= und Datensicherheit ol. 34,
no. 1, 34-38 ,Jan. 2010,.
1
1he phrase o Bacon in his Noum Organum ,1620, is well known: Scientia et potentia humana in
idem coincidunt, quia ignoratio causae destituit eectum.
2
1his modiication o Bacons phrase is inputed to Joseph Meyer, bookseller and publisher rom
Leipzig, Krois,Mockel ,issuer,, Lrnst Cassirer. Nachgelassene Manuskripte und 1exte, ol. 9, 1995,
p. 420 Anm. 582, applicable criticism: Stein'--er, Inormationstechnologie und Gesellschat, 1993, p.
234 et seq. with annotation p. 41 ,p. 60,: lor the \est German intellectual. , it is characterising,
that he knows almost eerything, but thererom nothing is resulting or his acting.
3
Kant, Beantwortung der lrage: \as ist Auklrung, 183, in: \eischedel ,issuer,, \erke in zehn
Bnden, 5.edition. 1983, ol. 9, p. 53.
4
1o lortschritt im Recht c. '0basic pre-consideration in: Schweighoer and others ,issuer,,
Lizienz on e-Losungen in Staat und Gesellschat. Aktuelle lragen der Rechtsinormatik, 2005, p.
546 et seqq.
Gunnar Duttge

42
horizon o wisdom, which thereore shall lead one to better understanding and
right` decisions, enabling the indiidual to sel determine` their destiny.
1oday, this described worldiew sustainably molds the work o modern
medicine, which - at least in \estern Lurope and the Anglo-American cultural
enironment - has dissociated itsel rom their ormer paternal conduct and
meanwhile no longer deems the transer o responsibility to the patient as a loss
but rather and increasingly as a relie.
\ith the establishment o the concept o infor'ed consent`, today`s patient is
ipso jure regarded as a character o equal rank and jointly responsible or
therapeutic procedures. 1hereore, and or the purpose o eectual insight into
this responsibility, the patient is to be coneyed the nature, meaning, and scope`
o the imminent interention, with special consideration to the associated risks
5
.
1his is already common practice when it comes to the distribution o
medication: 1he inormation lealet included in medicine packets by the
manuacturer must inorm the consumer in a generally comprehensible` manner
and legible writing` about the subject and indication group o the drug, known
contraindications, possible precautionary measures to be taken when using it,
interactions with other drugs, possible side eects and contingent necessary
countermeasures, as well as explicitly recommend to consult a doctor or
pharmacist` , 11 I AMG, in case urther inormation is needed.
1he result o all this eort is well known: 1he medical layman rather keeps
away rom the insurmountable obstacle o comprehending the lealet`s inormation
and inds it to be an unreasonable demand to seriously analyze the unbearably ital
messages. A logical reason or this behaioral maxim lies certainly within the innate
human drie not to hae hope and optimism be taken away quite so quickly.
Optimism, at times, is o clinical releance ,Placebo eect`,
6
and generally a
actor not to be underestimated in the doctor-patient relationship, itsel rooted in
mutual trust. 1here, howeer, is also by no means unwarranted ear that one`s own
reedom o decision-making is not only strengthened but maybe paralyzed by
inormation about negatie perspecties
: Knowledge might make one more

competent, yet simultaneously less ree, and occasionally een incapable o acting!
Not inrequently, the indiidual thereore preers to concentrate on the one
aspect which is important to him and willully ignores the arther reaching
complexity, consequently, he rather engages in the risk o ,ineitably partly blind,
trust than acquaint himsel with the details.
8

5
1o the particular releance o Risikoauklrung detailed DeutschHSpickhoffE Medizinrecht, edition
6, 2008, marginal no. 23.
6
Meanwhile een judicially airmed, c. LG Mnchen MedR 2008, 563, 56, EnckHGipfe-H
K-osterLha-fen, Bundesgesundheitsblatt 2009, 635 et seqq., 8e-tjenArunsHSchKfer, Anaesthesist 2008, 44 et
seqq.
Inormation is rom the inormationtheorys point o iew always and necessarily perspectiistic, to
this detailed Stein'--er ,n 2,, p. 200 et seq.
8
1o the undamental diergency o reliance and amiliarity detailed #uh'ann, Vertrauen. Lin
Mechanismus der Reduktion sozialer Komplexitt, 3. edition, 1989, p. 1 et seqq.
1he Right to Ignorance in Medicine

43
1hus, waiing o inormation` and inormational escape`, as the central
hypothesis points out, may not be one-sidedly understood as a deicit but instead -
when closer examined on a realistic leel - as a principle which allows and secures
reedom in the irst place ,Simitis,
9
and thereore needs to be saed and protected.
loweer, is there actually such a Right to Ignorance`
II6 !no/n an5 -n:no/n f(el5s of a88l('at(on
In the recent past, one area-speciic ield o application, in which recognition o an
indiidual right to inormational isolation`
10
is no longer genuinely denied, has
reached the center o attention in Germany.
1he Law o Gene Diagnostics
11
, essentially inured on lebruary 1
st
2010, ulills
the declared purpose o securing that no one shall against their will be orced to
take note o their genetic dispositions` and tolerate such restriction o ree
personality deelopment`
12
. 1he person that has agreed to medical examination is
to be explicitly notiied about this in order to allow or infor'ed consent.
Additionally, the person also has to learn that they do not need to take note o
already aailable results and thereore may at any time request to hae them
destroyed.
In the context o work and insurance policies, this basic understanding orms
the undamental notion or worries regarding speciic genetic discrimination as
well as ar reaching prohibition o determination, cognizance, and exploitation o
such inormation.
Interpreting the undamental right o eeryman, which grants bio ethical sel-
ruling`
13
, proes to be considerably diicult to implement and substantiate when
bio inormational` interests o multiple people collide. In the context o a human
genetic medical examination, it is unaoidable to concurrently acquire genetic
data
14
o one`s relaties, without them being aware o such proceedings. 1his is
where the indiidual`s right to attain inormation clashes with the right to secrecy
and later - when positie results hae come in and are subsequently passed on to
the amily members - with their right to be let alone`
15
. low does the new law
sole this conlict It does not regard the prospect o aecting others as a reason
why claiming o genetic examination shouldn`t happen. It also doesn`t stipulate any

9
Si'itis, in: Kroker,Dechamps ,issuer,, Inormation - eine dritte \irklichkeitsart neben Materie und
Geist, 1995, p. 153 et seqq.
10
(aupit= in: \iese-lestschrit 1998, p. 583, 585.
11
Gesetz ber genetische Untersuchungen bei Menschen . 0-31-2009 ,BGBl. I, 2529,.
12
C. 1he explicit reasons o the drat law proposed by the action Bndnis 90,Die Grnen rom
11-3-2006, B1-Drucks. 16,3233, S. 3, the bill o the Bundesregierung rom 08-29-2008 ,BR-Drucks.
633,08, is unchanged in comparison to this idea.
13
Detailed Koppernock, Das Grundrecht au bioethische Selbstbestimmung, 199.
14
According to 3 Nr. 11 i.V.m. Nr. 4 GenDG data ,gained through genetic analysis, about genetic
properties, i.e. inherited or during insemination or until natiity gained genetic inormation.
15
Detailed Duttge, in: Der Staat 36 ,199,, 281, 301 with urther supporting documents
Gunnar Duttge

44
kind o notiication o relaties concerning the planned ,indirect, assembly o their
genetic make-up. Should, o course, analysis reeal genetic qualities signiicant to
an aoidable and treatable disease, then human genetic adice shall include an
additional recommendation, namely or the examined person to adocate a
genetic consultation to these relaties` , 10 III S. 4 GenDG,.
Obiously, the legislator stroe or a compromise, which aims to aoid eident
disregard o the right to ignorance by immediate conrontation with negatie
inormation. Just as eident is, neertheless, that the utilization o the adised
person as well as the priatization o the inormation conlict, in accordance with
general accountability principles,
16
does not release the physician rom their
responsibility or the initiated notiication o the amily members, ater all.
1his orm o conlict resolution` is somewhat Pharisee-like
1
and moreoer
scarcely a ortunate task: Addressing the amily members ater the already occurred
ascertainment o clinical results easily reeals to them that something is wrong.
Consequently, they will hardly be able to eade - as secretly aspired - the
recommendation to seek human genetic adice themseles.
loweer, only as long as the uture is yet untold, one can speak o tangible as
opposed to simply postulated reedom o decision making. 1he prerogatie o
relaties to be spared the burden o inormation, accordingly, demands their prior
notiication about the planned examination. Otherwise it cannot be pledged that
they will be able to decide or this new and unsought inormation source ree rom
external inluence.
Since this reedom o decision making is not lost once a statement is made, a
submitted consent must be reocable until the notiication about the results is
issued. Inorming the relaties beorehand, howeer, ineitably collides with the
possible wish o the patient to keep their plans secret. 1hen again, this concern
does not preail: Due to the preordained relation to third parties, it is not
unreasonable to ask o the person to waie their right to secrecy, this being
especially true because it regards a planned undertaking rather than already
aailable inormation acquired through coert` testing.
It applies all the more since secretly carrying out the exam ineitably iolates
the warranted interest o the relaties not to hae their personal data gien up. As
made clear by the German Supreme Court o Justice in its recent ruling on the
subject o secret paternity tests`, it is a constitutional statutory duty to oer
indiidual protection rom third party access to personally identiiable inormation
without the person`s knowledge or permission`. As a result, the relaties` right to
inormational sel-ruling would be inringed by allowing or the challenge o

16
to the ineligible escape into priate law in a dierent context ,mission o contact persons,
detailed Duttge, JZ 1996, 556 et seqq.
1
Pharisee-excuses: we do not transer inormation, which is moreoer not haing any concrete
content and which is in particular not mentioning the positie diagnostic indings,, the indings are
getting announced ater abidance o the commendation and in with it authorised by the wish o
inormation o the ailated.

45
coping with the aorementioned collision o undamental rights to be subject to
the discretion o one indiidual`
18
.
1his surely does not mean that the amily members are essentially handed a
right o eto since that would mean long-ranging preention o uture genetic
diagnostics and would rob the indiidual o any possibility o oresighted lie
planning.
In ancestry cases, a doubting ather`s claim to inormation must yield to een
,only, anticipated prejudice o the child`s interests in the integrity o the current
amily structure and in aoiding o unwanted conrontation with existential
insecurities
19
,compare now 1598a BGB in conjunction with 1 GenDG,. I
this law is recognized, then the right to know one`s own genetic constitution shall
certainly not be thwarted by the relaties` interest in secrecy as long as their right to
inormation ,regarding the examination as such, as well as their reedom o choice
,regarding the awareness o the medical results, are granted and protected.
1he thereo resulting question is: Is the recognition o a ,basic, right to
ignorance speciic to genetic data or releant to all ,health related, inormation
1he idea o exceptionalism`
20
, which, despite all criticism, lays the oundation or
the new Law o Gene Diagnostics, could suggest the irst assumption.
21
German
deelopment o law, howeer, has long been disregarding this drawn line,
exempliied by the discussion on the reorm o the Law o Pregnancy Conlict
22
,
which was also enacted last year. It states that due to the psychologically
exceptional situation, in which a pregnant woman inds hersel ater conspicuous
results o a prenatal diagnosis, it is required not only to oer speciic consulting ,
2a,, but also to preiously notiy the patient about the psychological and ethical
potential or conlict` ,Zi. 2.2. o the PND guideline o the country`s medical
association,
23
which may require approal regarding the collection o prenatal
diagnostics.
A right to ignorance` is unquestionably acknowledged in this situation, and
that is, by no means, with limitation to genetic indings, howbeit the medical
practice noticeably tends to systematically rustrate this right by giing insuicient
inormation and by adertising the necessity o a premature detection o high-risk
pregnancy`
24
.

18
BVerG NJ\ 200, 53, 54 et seq. - Notabene: beyond that it seems to be a legal contradiction in
aluation, that in the lead-up to the genetic analysis there is attached great importance to an inormed
consent concerning the person getting analysed, whereas the ailated are not een getting inormed.
19
In this regard the BGl spoke about a right to ignorance, c. in: NJ\ 2005, 49, 498.
20
1o this detailed Da''HK&nig, MedR 2008, 62 et seqq., KiehntopfH2age-, MedR 2008, 344 et seqq.
21
Sceptical to a general right o lack o knowledge e.g. Si'itis, in: Schweizerisches Institut r
Rechtsergleichung ,issuer,, Genanalyse und Personlichkeitsschutz, 1994, p. 10, 121 et seqq.
22
Act rom 08-26-2009 ,BGBl. I, 2990,.
23
Deutsches Arzteblatt 1998, A-3236 et seqq.
24
According to the general purpose o a PND as it is described in the so-called maternity-
guidelines o the ederal commission o doctors and health unds ,aailable at: www.g-
ab.de,inormationen,richtlinien,19,, it is signiicant, that the claim or consultancy and adice in the
lead-up to the PND-procedure is expressed quite aguely ,c. chapter A, cypher 1,.
Gunnar Duttge

46
Another, nowadays undisputed ield o application, is the unauthorized lIV
test in conjunction with the disclosure o the results, which, aboe and beyond the
interention into the integrity o the body by ein puncture, is considered a
maniest iolation o the right to sel-determination.
25
According to the preailing
opinion, the patient may generally orego owed explanations i they do not wish to
deal with the risks and possible side eects o the designated therapy. It is,
howeer, rightully pointed out that a doctor must not assume such a waier o
inormation hastily or eer conclude conduct implying intent. In point o act, it is
to be implied that one wants to be inormed. 1he inormation on diagnosis, order
o eents, and risks, neertheless, is o such high releance to one`s own
personality that it is justiiable to allow partial or complete inormational
abstinence to those, who wish not to be bothered.
26

Certainly there are also ields o application, in which recognizing a right to
ignorance is out o the question: 1hat is, in cases o endangerment o speciic
others or een the general population as or example in the eent o inectious
diseases or when somebody`s suitability to drie a motor ehicle is in question.
\hen such a threat exists, which is to be determined by means o a medical-
psychological testing, the undoubted priority o the opposed interests call or the
denial o a right to ignorance.
Alarming, howeer, are those circumstances, in which the doctor proceeds in a
paternalistic way or the good` o the patient`s health without irst giing them a
choice in the matter. 1he across the board screening` o newborns by means o
tandem-mass-spectrometry seems to be such a recent instance in which the need
or parental approal as well as the need or limitation to treatable illnesses is
increasingly emphasized.
\ith this last mentioned restriction to remediable symptoms, 16 GenDG
now allows genetic mass screening`, i.e. systematically exercised medical
examinations within the entire population or medical purposes ,compare 3 No.
9 GenDG,. 1he regulation, unortunately, does not ,at least not explicitly, include
the seemingly natural requirement o oluntary participation on the basis o broad
inormation. 1he explanatory statement o the law nebulously mentions that the

25
In this sense e.g. LG Koln NJ\ 1995, 1621 et seqq. with reiew (eichner MedR 2005, 409 et seqq.,
.h-enAruck, MedR 1996, 206 et seq., to the contempt o an explicit reusal o a patient: LuGl NJ\
1994, 3005 et seqq.
26
1he concept o the SPD ,social democratic party, or a so-called patient-rights and accordingly
patient-protect-bill explicitly speaks about a right to lack o knowledge ,c. coalition agreement
rom 10-28-2008, p. 90, ,Lckpunkte eines Patientenrechtegesetzes rom May 2009, p. 3, aailable at:
www.spd.raktion.de,, the ormer opinion, ater what an eectie relinquishment assumed at least a
ague idea o the contures o the object o the relinquishment ,RoIner, NJ\ 1990, 2291, 2294, similar
FengerHK-ot=HHoff'eier, DM\ 2005, 2910 et seq.,, de acto implicates a orced adice. 1he judgement
BGlZ 10, 222 et seqq. ~ NJ\ 1989, 2318 et seqq., which was misleadingly mentioned in aour o
an obligation o inorming, howeer regards the dierent case o a doctor paternalistically ,because o
supposed mental lability, aoiding to gie adice to the ailated, although there was no indication,
that the patient could be aersed to a consultancy.

4
public interest in mass screening is alued superior to the indiidual interest o
the examined person`
2
, such a way o thinking, howeer, just asks or abuse!
1he right to ignorance with consideration to a possible beneit` is
questionable in yet another context: 1he utilization o imaging processes within the
scope o modern neuroscience introduces the possibility o so called chance
inds` in perspectie to therapy as well as research. 1he physician`s main problems
used to be the risk o acing criminal or liability charges when such conspicuous
eatures were not spotted, moreoer, the struggle o inding the boundaries o his
inestigatie duties.
28
Seemingly taken or granted, on the other hand, was - een
in the context o research studies - the disclosure o indings ,e.g. o an
accidentally discoered brain tumor, to the person aected or reasons o
consideration towards the person`s wellbeing. Slowly now the understanding
preails that the assigned treatment is otentimes limited, and that ,especially
healthy, patients hardly eer expect such horriying news. Consequently, the
patient or test person shall explicitly consent in notiication, something that can
only be done oluntarily` i it happens Aefore the conduct o the ,medical, check-
up and the ,research, study respectiely. It should be sel-explanatory that a
person`s reusal cannot be disregarded or pushed aside by relating to deense o
necessity. In order to aoid the moral conlict a physician is bound to hae,
researchers suggest making it a requirement or participation in the study that the
patient gies their consent to the notiication about a possible chance ind.
29
1he
hereby cleerly intended aoidance o conlict, howeer, paradoxically assumes
that one knows exactly what he does not want to be told, meaning which result
may possibly be ound. 1his is obiously the chie problem o a Right to
Ignorance` as an autonomous decision requires just the knowledge which in act
cannot yet be known.
30
Lssentially, a great deal o oresight is demanded o both
the researcher and the doctor. 1his increase in complexity, conersely, is
unaoidable due to the subject status pertained to not only the patient`s body but
also his inormational rights.
III6 Consol(5at(on -n5e& 'onst(t-t(onal la/
Ater all this, one concludes that although the basic right to inormational
priacy` demands or no absolute` alidity, it sure does demand pri'a facie
legitimacy. 1he latter is, not least o all, a result o the immediate connection
between the undamental right to ignorance and the basic idea o indiidual sel-

2
B1-Drucks. 16,10532, p. 33.
28
See i.e. Hentsche-HK-i+, lortschritte der Neurologie - Psychiatrie 2006, 651 et seqq., Sch-ei'H
SprangerH.rAachHWa-ter, Nerenheilkunde 200, 1041 et seqq., exemplary also Ku''er, Deutsches
Arzteblatt 200, A-3186: I it is the diagnosting doctor istead o the disease, that is rated as a risk,
ignorance gets eleated to an ethic principle.
29
C. Heine'annHHoppeH#ist-HSpickhoffHE-ger, Deutsches Arzteblatt 200, A-1982, 1986.
30
(aupit=, in: \iese-lestschrit 1998, p. 583, 59.
Gunnar Duttge

48
determination, which is restricted not only by physical but also by inormational
pressure`. 1his clariies that, in the end, another aspect o the right to
inormational sel-ruling is questionable, one that has not yet been suiciently
uneiled: 1he soereignty o data`, guaranteed since the amous lederal
Constitutional Court ruling on national census`, by no means only reers to
outgoing` but just as much to incoming` personally identiiable data.
31

loweer, how can one speak o a Right to Ignorance` when ,sel-,knowledge
has been extolled since the Delphian days as a symbol o higher lie o which one
can only hae too little but neer too much`
32
- Obiously the drawbacks`
33
o
wisdom and its Janus-headedness`
34
urge caution. \isdom`s quality to aect
behaior does not automatically hae merely positie eects on the indiidual. But
what about those who hae knowledge at their disposal and beliee to know it all
loweer indispensible their concern and care may be, it always also entails a
tightrope walk. 1oo easily may it turn into inantilizing and then desere the
conclusion, which has once been appropriately articulated by the US-American
judge %randeis, himsel the discoerer` o the Right to Priacy`
35
: 1he greatest
dangers to liberty lurk in insidious encroachment by men o zeal, well meaning but
without understanding!
36

IV6 O-tloo:
Now, where do my obserations lead us lans Jonas once ormulated that
uncertainty is a precondition to reedom`. lrom time to time it can be a relie not
to hae to know something. In other words: Ignorance is ineitably imminent in all
human wisdom, yet not necessarily deemed a law.

31
As well as Hof'ann, Rechtsragen der Genomanalyse, 1999, p. 4 et seqq., Kat=en'eier, Deutsches
Arzteblatt 2006, A-1054 et seqq., dissenting Ret=ko, Prdiktie Medizin ersus ,Grund-,Recht au
Nichtwissen, 2006, p. 149: Allge-meines Personlichkeitsrecht, Stockter, Das Verbot genetischer
Diskriminierung und das Recht au Achtung der Indiidualitt, 2008, p. 511 et seqq.
32
onas, ib.
33
Weh-ing, in: Brsemeister,Lubel ,lrsg.,, Laluation, \issen und Nichtwissen, 2008, p. 1 et seqq.
34
Stein'--er ,ln 2,, p. 235.
35
WarrenH%randeis, 1he Right to Priacy, larard Law Reiew IV ,1890,, Nr. 5.
36
In: Olmstead s. United States ,192,, 2 U.S. 49.

Re'ent Resea&'+ A''(5ents an5 Ne/ A88&oa'+es to
Va''(nat(on
Le)al 8&oble*s &e)a&5(n) t+e test(n) of ne/ 1a''(nes fo&
(nfe't(o-s 5(seases

Erwin Deutsch
I6 Int&o5-'t(on: Latest &esea&'+ a''(5ents
In the last years, spectacular cases occurred concerning phase I o clinical research.
1he pioneer patient, Gelsinger, at the Uniersity o Pennsylania died a dreadul
death ater the administration o a new medicinal drug.
1
1he gene therapy study in
question was perormed the day ater Jesse Gelsinger`s 18
th
birthday, aoiding the
need or parental consent. 1he hospital steered clear o a trial by oering a high
settlement, and exempted the co-deendant rom liability, an ethical adisor, who
had insisted on accepting an adult in the study although the particular disease is
known to be easier to treat in children.
1he second attempt to go wrong was carried out by the American company
Parexel or 1egenero Ltd., a company associated with the Uniersity o
\uerzburg.
2
Light olunteers rom Lngland, Australia, New Zealand, and South
Arica were injected with the antagonist 1GN 1412, two olunteers receied

1
Saolescu, 1wo deaths and two lessons: Is it time to reiew the structure and unction o research
ethic committees, jmedethics 2002, 28, page 1, Paul Gelsinger, Jesse's intent, Bull.Med.Lth.,
June,July 2002, page 5 .
2
Bull.Med.Lth., March 2006, pages 3 .
Lrwin Deutsch

50
placebo. All members o the test group suered rom seere side eects and had
to be treated in the intensie care unit or multiple days. 1egenero`s insurance paid
each injured person LUR 10.000. 1his and more would hae been required o
them, i experimentee insurance, i.e. insurance or test persons including
international coerage, had been contractually applicable.
1he latest eent occurred in Chicago, where a 36-year-old woman died o
multiple organ ailure.
3
Jolee Mohr had participated in a gene therapy study by the
pharmaceutical company 1argeted Genetics, aiming to improe her arthritis
treatment with the aid o an applied gene ector. 1he study has not yet been ully
explored, howeer, it is quite clear she was inused with a ehicle carrying the gene
or the tumour necrosis actor receptor. Reports suggest that it was an early clinical
study o phase I, dealing exclusiely with the saety o this typical gene remedy.
1he patient`s consent had been sought with the premise that these experimental
treatments may not actually be able to reliee her symptoms.
II6 #(sto&.
One o the early cases o medical experiments inoled accines, a accine against
smallpox to be exact. In his #ettres ang-aisesE 3o-taire describes medical trials with
inmates o the Newgate prison in London. 1his case`s history is quite ascinating:
1he Lnglish emissary at the ligh Gates had coneyed an old custom o the
Cherkessian, a tribe in the Caucasus. 1here, the skin o young children was scribed
by the blood o a person inected with smallpox resulting in the eectie
preention o the smallpox irus. 1his custom allegedly stems rom Arabic
cultures. Len the British ambassador`s wie, Lady Montagu, had inoculated her
son with the blood o a person suering rom smallpox.
According to 3o-taireE condemned London prisoners were gien the
opportunity to participate in the inoculation with the smallpox irus in return or
being released. 1he prisoners unanimously agreed and were released ollowing
inoculation. As a result o this trial, the inoculation against smallpox was ery
popular in Lngland. At the same time, howeer, the Paris parliament ,the courts
prior to the reolution, outlawed the inoculation o the smallpox irus, citing
bodily harm.
4
3o-taire criticized this decision and represented the opposite
standpoint in Lngland.
1he largest medical experiment o all time also reoled around accination,
namely the salk accine against poliomyelitis, which was tested on hundreds o

3
lAZ broadsheet daily newspaper rom August 8, 200, page 34: death ater knee problems ,1od
nach Kniebeschwerden,
4
3o-taire in lernand Mass ,ed.,, Lettres anglaises 196 pages 62 ., the history o trials with pocks
accines in the USA and Lngland, described by !oore Daedalus 98 ,1969,, 502 ,504 .,, on
accination trials in lanoer in 166 %en=enh&fer, Der lannoersche lo- und Leibarzt Paul Gottlieb
\erlho ,1699-166, 1992, 10 and experiments in Breslau discussed by 3o--'annHWienau, Inormed
Consent in luman Lxperimentation beore the Nuremberg Code BMJ 1996, 1445.
Recent Research Accidents and New Approaches to Vaccination

51
thousands o children in the United States o America in the mid 1950`s. 1he
subjects were diided equally into two groups. Many hundreds o thousands o
other children were treated with the accine through the extended access study.
1he experiment yielded an undoubtedly clear result regarding the eicacy o the
salk polio accine.
5

1he curse o smallpox, presumed exterminated, returns disguised as a possible
terror attack, reminding onesel o the spread o the plague in the middle ages. 1he
Genuese garrisons o Crimea were besieged by the 1artars. 1hrough the use o
catapults, the besiegers hurled the bodies o plague ictims aboe the barricades
into the enemies` ortresses. 1his led the deenders to lee on galleys, subsequently
carrying the plague to Lurope.
6
1he ollowing entry can be read in the Guinness`
\orld Records`: Ear-iest use of s'a--po+ as a Aio-ogica- weapon; During the French and
1ndian War of 65D<B65?5E %ritish so-diers fighting in ,orth 9'erica at that ti'e distriAuted
A-ankets conta'inated with s'a--po+ a'ong the 9'erican 1ndians" Epide'ics fo--owedE ki--ing
'ore than D7M of affected triAes
5
.
III6 ene&al &-les of 'l(n('al t&(als
1he general rules o clinical trials apply or all new accines against smallpox and
other emerging inectious diseases, such as the bird lu. loweer, one particularity
needs to be stressed: 1he test subjects usually are not at risk o alling ill with
smallpox or any other new epidemic. Such an eent would only occur, i the
experimental proceedings were similar to practices used during \orld \ar II,
when prisoners were separated into groups o accinated and non-accinated
persons and then exposed to the contamination.
8
1his, howeer, is unethical and
possibly een criminal. An elaborate trial with a large number o experimentees,
who are treated with the new accine, should set precedent in the determination o
the saety o a particular drug or treatment, e.g. ensuring the treatment is
eicacious and holds no risk o secondary iral inection.
As ar as eicacy goes, this is similar to the immunisation o donors or the
extraction o plasma to make special immunoglobulins , 8 1PG,. lere as well,
olunteers are inected with a speciic medication or the purpose o immunisation,
e.g. against pertussis. 1he rationale oten gien includes the suicient supply o

5
On polio experiments in third countries c. DeutschE Das Recht der klinischen lorschung am
Menschen 199 page 83.
6
Gieg-er,1he Black Death 195, pages 15.
Guinness Book o \orld Records 2005, page 306

8
Namely the concentration camp experiment with thyphus: United States . Rose, 1rials o \ar
Criminals beore the Nuremberg Military 1ribunals olume 2 page no. 264. Malaria trials with
olunteers in the American Stateille Prison in Illinois during the Second \orld \ar, described in the
bestseller o #eopo-d, Lie plus 99 years 1958 pages 305-338.
Lrwin Deutsch

52
immunoglobulin or the population as well as the existence o a consenting donor.
9

8 1PG regulates both the necessity o comprehensie inormation and written
consent. Additionally, the donor is socially insured in the eent o an accident.
According to the new ormulation o the Declaration o lelsinki
10
, and
generally accepted rules transpired rom laws ,such as 40 AMG, 20 MPG, and
court rulings, clinical experiments are based on two pillars: Medical deensibleness
and consent based on thorough inormation. Regarding medical deensibleness,
the ealuation o possible adantages and oreseeable risks is a necessity. 1hus, the
experiment is medically deensible i reasonable to the patient, which in turn
depends on preailing judgements o the scientiic and medical communities.
11

Concerning accinations, the primary consideration must be the underlying
intention in the immunisation o the patient.
Immunizations are recognized instruments or the preention o inectious
diseases, such as poliomyelitis, yellow eer, inluenza, rabies, measles, mumps,
rubella, chickenpox, diphtheria, tetanus, cholera, etc. Due to immunizations,
smallpox has been eradicated since 198, and poliomyelitis was successully
restricted to a handul o countries.
1he second and equally important prerequisite to research is, as mentioned
aboe, the necessity o patient consent ater haing been ully inormed. 1he
research subjects should be told about the aims, methods, beneits, and risks o the
study, the concomitant discomort o the experimental treatment should not be
kept rom them. Medical experiments on uninormed patients hae always been
illegal and hae een led to criminal proceedings. Consent is designed to ollow a
thorough explanation o the potential treatment,s, that lay ahead, must be gien at
utter liberty. lorce, ear, and deceit should not play any part. Participating in
clinical trials is resered or olunteers as they are the only persons able o
expressing their own ree will based on comprehensie inormation. Consent gien
as the result o intimidation or deception is inalid and is in iolation o both ciil
and criminal law.
12
It is still uncertain, whether soldiers under the command o
their oicers require inormed consent or whether the reception o inormation
alone shall suice. 1his issue shall be urther discussed later on.
Concerning inormed consent, uncertainty remains with regards to whether
inormation has to be communicated in writing and whether consent needs to be
in writing. As long as the Law does not oblige dierently ,as it does in 40 AMG
and 8 1PG,, consent is not bound by ormal requirements. Neertheless, the

9
lor general justiication o the immunisation o donors, c. DeutschH%enderHGi''er'ann,
1ransusionsrechts 2001, page 125., #ippertHF-ege-, Kommentar zum 1ransusionsgesetz ,1lG, und
den lmotherapierichtlinien 2002 8 No. 2.3.
10
Declaration o lelsinki by the \orld Medical Association Ldinburgh 2000.
11
C. or general inormation: Giesen, Arzthatungsrecht 1995 pages 68., Kat=en'eierH#aufs,
Arztrecht 16. Aul. 2010 XIII, 14.
12
3an 8osten, 1he doctrine o inormed consent in medical law 1991 page 1., #aufsH.h-enAruck,
landbuch des Arztrechts 3.edition 2002 130, Deutsch, Das Vertragsrecht des Probanden, VersR
2005 1609, 1610.

53
written orm is usually used to ensure distribution o uniorm inormation and or
means o proo. Regardless, consent must be gien by the indiidual in complete
reedom, which means that eery olunteer may reoke their consent without
listing reasons or doing so.
13

Clinical trials are rooted in part by the principle not to conduct experiments on
ulnerable groups, such as children, mentally ill indiiduals, and members o esprit
de corps, i.e. police oicers and iremen. loweer, under certain circumstances,
een within these experiments ulnerable groups can be permissible. 1he
restrictions concerning these groups are due to the inherent inability o these
indiiduals to gie ree consent. Children typically are too young and dependents
o their parents, ciil serants may eel obligated to participate due to pressure by
their colleagues.
1he clinical trial is permissible, howeer, in the case it reoles around one o
those groups, e.g. a typical children`s disease, 40 IV AMG. Still, it must be
conirmed that the experiment cannot instead be conducted with adults able to
consent. 1here are, howeer, multiple ways o conirming the need or
experiments on children: An ethics committee o which at least one member must
be amiliar with the treatment o children`s diseases, must examine and ealuate
the proposal. 1he unresoled question that remains is whether it is permissible to
include into the trial a control group consisting o matched children or the aboe
mentioned children, especially when the control group shall only receie placebo,
e.g. shall use a respirator or 15 minutes daily. In this context, it is necessary to
dierentiate and ensure the burden and inconenience o the control group
remains minimal. 1hey shall not be expected to do more than participate in a
supericial and time restricted manner.
14

It is still ery controersial, whether the patients ought to be told on whose
authority the study is to be perormed and who shoulders the costs.
15
1he last
principle shall be clariied by saying, that each participant may be gien a monetary
or similar incentie. Certainly, in case o a mishap, the innocent ictim o an
experiment shall be gien compensation without haing to proe ault o another
party. 1his is where sacriices come into play, the subjects jeopardize their own
health or research and the welare o the general public.
16
1hereore, 40 AMG
grants insurance to the subjects, and lrench laws grant extended liability in case o
research accidents.

13
lor written consent c. 40 Abs. 1 Nr. 3b AMG. Under special circumstances, consent to
experiments on ill people does not hae to be in writing , 41 AMG,. Compare DeutschHSpickhoff,
Medizinrecht 6. edition 2002 Rdn. 92.
14
Compare Oicially Directie 2001,20,LC o 4 April 2001, o the Luropean Parliament and o the
Council on the approximation o the laws, regulations and administratie proisions o the Member
States relating to implementation o good clinical practice in the conduct o clinical trials on
medicinal products or human use, Art. 1: Protection o incapacitated persons in research projects.
15
Vgl. Finke-, Should Inormed Consent Include Inormation on how Research is lunded IRB 1991
Nr.5 S. 1.
16
Anders Granit=a, latungs- und ersicherungsrechtliche lragen bei der Prung zu einem
Arzneimittel, in: lelmchen et.al., Psychiatrische 1herapieorschung 198 page 83.
Lrwin Deutsch

54
IV6 Me5('al <-st(f('at(on at t+e sta&t
1he new medications are irst applied in phase I, the accine`s saety is tested with
regards to the patient`s tolerance and i the results reeal low risks to the olunteer.
Only ater saety is assessed, urther medical experiments may commence. 1his test
is especially important when healthy olunteers undergo an experiment with
accines and when the accine is designed to protect an indiidual rom diseases
or which there is no cure aailable. Certain cases touch on the problem o saety.
Some lie accines, such as the sabin accine, can cause mutations which
hae the same irulence as wild iruses. In countries with higher incident
rates, the sabin accine was thereore replaced with the salk accine.
C0tokine Re-ease S0ndro'e Stud0E incidents at the ,orthwick 2ark Hospita- in
#ondon; Light indiiduals participated in phase I o a clinical trial inoling
humanised monoclonal antibodies, and two subjects receied only placebo.
1he six who were treated with the actual preparation ell critically ill.
1eGenero, based in \uerzburg, was the producer, with Boehringer-
Ingelheim as the manuacturer. 1he experiment was carried out by the US
company Parexel with its head oice in Brussels. 1he cause was assumed
to be an oerreaction ,cytokine storm, due to the eects o the antibody
1GN1412. 1his monoclonal antibody does not hae an antagonistic eect
but acts as an agonist. Its goal is the induction as opposed to the
preention o an immune reaction. Apparently the seere consequences
were typical or an agonist.
1
Meanwhile, the research subjects hae been
released rom the hospital, albeit one was diagnosed with leukemia. 1he
insurance company o 1eGenero transerred LUR 10.000 to each sick
person`s account, which amounts to the sum due according to the
insurance conditions but yet disregards 40 III AMG, which demands or
appropriate compensation or the risks connected to the clinical trial, and
in the eent o death or unceasing inability to work een speaks o at least
LUR 500.000`.
!a-aria e+peri'ent in the State/i--e 2risonE 1--inois: During the Second \orld
\ar, malaria tests were perormed on olunteers in the American Stateille
Prison located in Illinois. 1he press was inited and reported on the
patriotic motiations and the wish o many prisoners to participate in the
trial. 1hey had been ully inormed. 1he test subjects, by the way, released
the head o the trial and all institutions rom their liability. Many trial
participants were pardoned in 194 by the goernor o Illinois.
18

1
Compare or more details DABl 2006 A988: Patienten genesen, lersteller entlastet.
18
In more detail #eopo-d aaO ,ln. 4,. #eopo-d himsel participated in the tests.

55
V6 Eff('a'.
1he eicacy o medication is tested in phases II and III, generally, it is a clinically
controlled study, in which two groups are juxtaposed: Members o one group
receie the medicinal drug whereas the members o the other group receie
placebo or, in case this is too dangerous, the medication they hae been receiing
thus ar. 1he concept o eicacy is a serious problem when testing a accine. Many
cases concerned the eicacy:
(he testing of the Sa-k po-io /accine: In 1955, the irst accination against
inantile paralysis was tested. It was a medication deeloped by Salk. 1he
press reported a ew hundred thousand children had participated.
19
1hey
were separated into groups, one group receied the accine, the other
group receied placebo. It was also reported, that many parents cheated the
system by signing up their children or the accination in multiple places
hoping their child would at least once be in the test group.
20

!a-aria e+peri'ents in Oxord and the Ga'Aia: A new accination against
Malaria, which aects bacteria in the lier, was just recently tested on 0
olunteers in Oxord. All had receied the actual accination. Lery
participant was bitten ie times by inectious mosquitoes. According to
news paper articles, a partial but signiicant protection shield became
apparent. Now there shall be a trial in the Gambia with 360 adults, hal o
whom shall receie the new accine whereas the other hal shall receie a
drug against rabies. During the malaria season, the test persons` health shall
be examined
21
, the results hae yet to be published.

1he testing o whether a accine is eicacious raises diicult ethical and legal
questions. Lxperiments with accines otentimes are not illegal, een i the test
subjects neither suer rom any disease nor are in the immediate danger o
becoming inected. Clinical trials aiming at maintaining a low leel inection,
especially those o epidemic nature, are permissible. At the same time, one must
also bear in mind the health and well-being o the participants. loweer, een i
there is a signiicant chance o inection, especially or the members o the placebo
group, it is a risk worth taking. I there was no control group to take the risk o
becoming inected, drugs could enter the market which promise neither
prophylaxis nor cure but rather eign them. An impressie example is the alse
ealuation o passie prophylaxis o tetanus during the lirst \orld \ar, when
people belieed to hae ound tetanus anti serum, a aluable prophylactic. 1he
medical corps also used it in the Second \orld \ar, albeit the actie accination

19
Compare or more inormation and or general inormation on experiments with children Deutsch,
Das Recht der klinischen lorschung am Menschen ,199,, 83.
20
Strictly against experiments on children 2appworth, luman Guinea Pigs ,196,. More careul %eecher,
Research and the indiidual ,190,.
21
C. 1he Lconomist om 20.8.2002 S. 60: A new Malaria accine is being tested in the Gambia.
Lrwin Deutsch

56
was only gien to paratroopers. Besides paratrooper casualties, many lies were
lost to tetanus despite the passie treatment with serums.
1est persons under command set orth particular problems. Generally aected
are the military, howeer, members o other occupational groups are also
considered, e.g. hospital sta. Consent is not necessary, i one is obligated to
participate. 1hereore the next question to present itsel is whether the test persons
may be let in the dark about experiments conducted with and on them. 1he so
called 1horotrast case, which was carried out during the Second \orld \ar at the
Uniersity hospital o leidelberg, was about a contrast medium o which`s risk the
patient was not inormed. 1he case Desert Storm also let the soldiers clueless that
a not yet authorized accine was tested on them.
22
1hese practices should be
questioned, not only or the reason o inormed consent but to disclose to the
participants the risks and gie them the chance to claim damages, just as they were
in the leidelberg case.
VI6 Consent an5 Info&*at(on
Usually inormation supersedes consent and in most cases brought to court, claims
are based on insuicient inormation. \et consent is the actual legal justiication
or the experiment. As aorementioned, consent should be gien by the subject
personally, he or she ought to be ree. Pressure and conceit are inadmissible.
Consent is based on gien inormation and cannot go beyond what the person has
heard or read. Consent has two legal sides. 1he irst reers to the permission o
harming a person. 1he unlawul harm done is justiied due to the gien consent.
On the other hand this implies that the consenting indiidual generally bears the
risk o damage to his or her health. 1his is not applicable in the eent o negligence
or in the case compensation is granted or the sacriices. loweer, usually it is the
subject who bears the consequences. Consequently, inormation must be thorough
and complete to be able to lead to consent. 1he indiidual must be told what is
done to him during the experiment as well as how long it will take and which
inconeniences, risks and possible adantages are entailed. Based on this
inormation the person can consent. 1he ollowing cases clearly capture the
alidity o this statement:
.nited States /" Rose
23
: Rose was the head o the department or tropical
medicine at the Robert-Koch Institute. During the war, experiments were
carried out on concentration camp prisoners using typhus, and his
department supplied the concentration camps o Buchenwald and
Natzweiler with rickettsia bacteria and accines. Rose isited the sick
rooms in Buchenwald and studied the medical history. lor purposes o the
experiment, both a accinated and a control group were inected with

22
BGlZ 20, 61 ,1horotrast,, Doe . Sullian 56 l. Supp. 12, 938 l. 2d 136 ,1991, Desert Storm,.
23
United States . Rose, 1rial o war-criminals beore the Nuremberg Military 1ribunals Bd. 2 S. 264.

5
typhus eer. Quite a ew patients o either group died, many ell ery sick.
A total o 29 prisoners were inected, o whom at least 154 died. 1he
experiment was described to them as harmless, better treatment had been
promised. Rose was charged or both war crimes and crimes against
humanity.
.nited States /" Stan-e0
24
; In 1958, a sergeant o the American army
olunteered or a program in which the eectieness o protectie clothing
against chemical warare was tested. \ithout his knowledge he receied
LSD, which leads to hallucinations and memory loss. Not until 195 was
he inormed o the true circumstances o the experiment.
VII6 Cont&ol )&o-8s, 8la'ebo t&(als an5 &an5o*(sat(on
Medical research is especially conincing when a comparison strategy is used. 1his
approach is also applicable or accination trials against the smallpox irus.
Utilizing dierent groups when testing accines, i.e. both a test and a control
group, was rarely tried. New inormation came about in 181: 1he German army
was accinated whereas the lrench army was not and suered rom signiicantly
more diseases, becoming the oundation o German accination laws. A clinically
controlled trial on smallpox did not lead to results accepted by the medical
community, in trials o 1959 and 191 with accine antigens and MVA accines
against smallpox, control groups were not utilized. An experiment conducted in
1962 within the Netherlands used a combined actie-passie accine but the
homogeneity o the subjects was uneriied. Some participants had been preiously
accinated as children.
25

1he use o placebo, a substance containing no actie ingredient, yields
diiculties in itsel. As long as dierent accines are tested against one another,
medical research seems to be justiied since the starting point is a subjectie
uncertainty.
26
loweer, it is quite another matter to directly expose a group to the
dangers o an incurable disease. 1his is considered unethical, illegal and een
criminal. In the latest ersion o the Declaration o lelsinki, the admissibility o
Placebo trials was constrained. Accordingly, the use o mock medication is allowed
only i there is no approed prophylactic diagnostic or therapeutic treatment
method.
2
Due to the protest o American medical doctors, a note o clariication
has been issued by the board o the world medical association, stating that a
placebo controlled experiment can be ethically permissible only i urgent and
scientiically acknowledged methodical reasons preail or i the possible symptoms

24
United States . Stanley 10 S.Ct. 3054 ,198,
25
(ho'sen, Pocken- und Pockenschutzimpung 2002
26
#oren= et.al, Chirurgische Arbeitsgemeinschat r klinische Studien, Patientenzuteilung bei
kontrollierten klinischen Studien in Der Chirurg 1982, 514, Deutsch loc cit ,ln. 9, Rdn. 542.
2
Declaration o lelsinki Ldinburgh 2000 C Nr. 29.
Lrwin Deutsch

58
as well as the experiment itsel cannot lead to additional risks o grae and
irreersible damage.
28
1his is now expressed in the Social Version ,2008, C32.
Lxperiments with smallpox accines touch on this issue.
Randomization, i.e. the allocation to the dierent groups by chance, is done in
order to preent erroneous results and make the groups more representatie.
29

Normal accination trials require large subject groups. Due to the inherent
complexity o each group, there is not much room or sensible randomization.
VIII6 L(ab(l(t. an5 Sa'&(f('es
In the eent o negligent bodily injury during the planning or execution o an
experiment, liability exists in the orm o 280, 823 BGB due to a breach o
contract and a tortuous act.
30
Negligence includes not obsering due care and
attention, 26 II BGB. In Scotland, goernment agencies just recently were
presumed to carry ault or not initiating clinical trials in response to repeated
notiications by the medical community, warning about side eects. 1his case dealt
with the treatment o men and women o small stature, whom were gien growth
hormones o animal origins. \hen multiple patients deeloped Creutzeldt Jacob
syndrome, state agencies reacted slowly to the reports on the ery many side
eects.
31
1his coined scientiic and social progress by rendering the irst case in
which omission o a clinical experiment was perceied as negligent. In clinical
trials, circumspection is chiely the oerseeing medical doctor`s responsibility.
32

Moreoer, the ethics committee as well as goernment agencies are obligated to
preent oerly dangerous experiments.
In case no one is at ault, sacriice compensation may generally be demanded,
albeit it shall not lead to ull damages but shall somewhat take care o the innocent
ictim. Lach time the subject was not asked to consent such sacriice
compensation is demandable, especially in the case o soldiers under command.
Moreoer, many countries hae established general rules or objectie liability or
hae ensured that i the risks o a clinical trial are realized, there would be
insurance or sacriice compensation. lrance, or example, instated a law in 1988
clariying the rules on liability during medical experiments: lor non-therapeutic
experiments it proides objectie liability, or experiments yielding immediate

28
K-inkha''er, Umstrittenes Dokument DABl 99 ,2002,, A 409, (aupit=, Note o Clariication -
Kaum zu erantworten DABl 99 ,2000,, A 411.
29
Vgl. DeutschHSpickhoff, Medizinrecht 5. edition ,2002, Rdn. 654.
30
Fischer, Medizinische Versuche am Menschen 199 S. 8, Deutsch, latung bei lorschungsunllen,
Mitteilungen des lochschulerbandes 199, 165, ung, Die Zulssigkeit biomedizinischer Versuche
am Menschen 1996 mit rechtsergleichender Untersuchung au Grundlage des ranzosischen Rechts.
31
1hus decided in 1he Plaintis . U.K. Medical Council, Queens Bench, Bull. Med. Lth.,
Noember 1996, 16: 16 Children died o CJD, three more suer rom this disease. In 19 there
were more than enough signs suggesting the danger in using corpse hormones. loweer, the clinical
study was delayed or two years. 1he Courts ruled this to be negligent.
32
More in detail Deutsch, Das Vertragsrecht des Probanden, VersR 2005, 1609.

59
beneits or the test person, it instates responsibility or suspected negligence.
33

Germany proides casualty insurance in aor o a third party , 40 AMG, 20
MPG, or the testing o medicinal drugs and products.
34
1his casualty insurance is
a seldom emergence o compensation insurance in the eent o accidents. One
ruling o the American Supreme Court illustrates quite well the liability or ault in
case a goernment agency does not insist on suicient testing:
%erko/it= /" .nited States
35
: A two month old child was injected with a polio
accine, which had been produced by a company named Lederle. 1he so
called Cox lie accine contained a paralytic orm o the polio irus. \ithin
a short amount o time the child deeloped a ery seere case o inant
paralysis. According to the applicable law, liability o the ederal
goernment was possible in case the proided discretion had not been
executed ree rom error or in case o a ailure o obligation o either a
goernment agency or an oicial. 1he suing child argued that the National
Institute o lealth ,NIl, and its Department or Biological Standards
should not hae granted Lederle a licence to produce the accine. 1he
appellate court dismissed the case, howeer, the Supreme Court allowed it,
stating that it was probable that the NIl had exceeded its scope o
discretion. I this could be proen, such goernment misconduct would
lead to damages.
I"6 E=t&ao&5(na&. s(t-at(ons an5 /a&
Rules o law and normal standards o ethical behaior aect normal situations.
\et, in the eent o an abnormal` situation, ethical standards are, i without
complete abolition o legal and ethical rules, decremented. 1he case o Desert
Storm well illustrates this act
36
:
Doe /" Su--i/an
3
: Desert Storm occurred during the gul war operation. 1he
United States o America aced the ear that in their war against Iraq
chemical and biological weapons would be used as in preious conlicts.
1hereore the Department o Deense sought permission rom the lederal
Drug Administration ,lDA, to use medications and accines which had
not yet been approed or use. 1hey were supposed to be applied een
without the knowledge o soldiers on the ground. 1hey claimed military
necessity. Due to the state o war, the lDA granted approal, also

33
Loi No. 88-1138 om 20.12.1988. C ung loc cit ,ln. 2,.
34
K-ing'--er, Zur Probandenersicherung nach dem neuen AMG in lestschrit r lau| 198 page
169, Deutsch, Das Vertragsrecht des Probanden, VersR 2005, 1613.
35
Berkoitz . United States 486 U.S. 531 US Supreme Court 1988.
36
9nnas, Changing the consent rules or Desert Storm 1he New Lngland Journal o Medicine 1992
S. 0, GunA0, Inorming o inestigatonal drugs, deices JAMA 1995 s. 26.
3
Doe . Sullian 56 l. Supp. 12, 938 l. 2d 136 lederal District Court, lederal Court o Appeals
1991.
Lrwin Deutsch

60
acknowledging the obious and immediate danger the soldiers ound
themseles in. 1his approal was contested in court, but the case was
dismissed in two instances. 1he trial court claimed the approal to be a
strategic decision and denied its jurisdiction. 1he majority o the judges o
the appellate court recognized their jurisdiction or the reason that the case
dealt with a special license gien by the lDA rather than military matters.
loweer, they still did not allow the appeal, stating that the main reason
or using non-approed medication and especially accines was not
scientiically but militarily sustained. 1hereore normal restrictions were not
applicable.

1he so called \ar on 1error established another situation. 1he danger that iruses
may be used or terroristic actiities is ery real. 1hereore people who may come
in contact with inectious diseases are obligated to get accinated. 1his particularly
aects personnel o health serices, mainly o hospitals. On the occasion o these
accinations it would be permissible to test a new accine against smallpox, which
yields no known side eects. A known side eect o the current smallpox accine
is encephalitis. Due to the large number o people aected by such a accination
,presumably more than one million indiiduals,, groups could be ormed, and one
would be treated with the usual accine and unction as a control group while the
other one would receie the new accine.
"6 Resea&'+ /(t+ 1a''(nes to5a.
1hese considerations lead to another controersy, namely actie and passie
accinations against pathogens o new deeloping epidemics and pandemics, e.g. a
mutant orm o the bird lu irus l5N1, allowing inection o humans. According
to rumors a similar irus was contracted by US soldiers towards the end o \orld
\ar I, resulting in inluenza and the death o millions. 1he death toll is said to
hae been 30-40 million people worldwide.
38

1he anticipation o the bird lu has led to a ariety o experiments in Germany
and the USA. \hile the pandemic risks were discussed in lie insurances, the
irtual paperchase` made headlines in Germany. 1he lrauenhoer Institute or
Applied Inormation 1echnology conducted an epide'ic 'enace; Both a German and
a Belgian 1eam compete against each other in soling the ollowing irtual case: In
a secret medical research laboratory a dangerous irus was discoered, which could
lead to the extinction o human lie on this planet. 1he research director clariies
that it is essential to catch as many iruses as possible, then igure out who spread
the irus, and take that person into custody`. In a communication center,

38
DABl. 2006 A 986: Impstoentwicklung: Begrenzte Immunogenitt einer l5N1-1estakzine,
press release rom 26 July 2006: l5N1-Pandemie-Impsto on Glaxo-Smith-Kline ,hohe
Immunantwort bei geringer Antigendosis,.

61
sureillance cameras show the moes o the two groups, their members and the
iruses. 1he simulated catastrophe, namely the contamination o all paths with
dangerous iruses, is depicted by lea-like shapes in red, green, orange, and pink.
1he members o both groups are supposed to see and destroy those shapes. 1hey
are equipped with a positioning technique, which is controlled rom a weather
station. 1he scenario is recorded by a game serer aware o each player`s position.
One member o each team is sent outside while the rest o the team ia cell phone
directs him where to ind the shapes. Stationary and mobile players are switched
out periodically. 1he iruses are exterminated with a shooting tool, with the simple
push o a button. A hit is made known through music, whereas a miss sets o no
audio stimulus. 1he player`s extent o inection is indicated in percent, and the
more his capability decreases the more imperatie it becomes to switch him out.
39

A ery dierent procedure is used in the Center or Disease Control in
Atlanta, where a combination o the bird lu irus l5N1 and the lu irus type
l3N2 are crossed. Such a mix is pure horror or lu experts. It is een assumed
that the pathogens o the two last lu pandemics o 1968 and 195 ollowed rom a
gene swop o a bird irus. 1he irus mixture was tested on errets, which didn`t all
at all as sick as they had with the earlier l3N2. Also, they did not inect other
errets in neighboring cages. lerrets are used or lu experiments because their
respiratory tract is similar to humans with respect to docking points or iruses.
40

1he goernment o the United States o America decided on a program to
ight pandemics, which includes distinct encroachments into current legal
regulations or accination trials. 1hese trails are to be acilitated, e.g. by total
reedom rom liability. Also, the experiments and irst and oremost their results
are supposed to be applied to hospital personnel.
It is questionable whether studies on epidemiological models are appropriate in
this time and age, chiely due to the possible speed at which a pandemic l5N1
inection can spread. Lxperiments or the production o experimental accines and
their application are o greater importance. A current uncertainty reoles around
an American accine, which has been planned in Rochester and produced in Paris
by Sanoi-Pasteur: In case o a pandemic deelopment, how can immune
protection be generated as quickly as possible 1he antigen composition o
pandemics is unknown, the production o accines, thereore, cannot begin beore
it irst presents itsel and is isolated. Production requires seeral months. Maybe
two doses o the accine ought to be injected with time lag in order to achiee ull
protection. 1hereore the delay will be een greater. Owing to these circumstances,
current model systems are testing whether a pre-accination with a current l5N1
isolate can prepare a person in such a way that in case o a pandemic he or she will
only require another dose o the epidemic stem. Such experiments, called pre-
pandemic accination`, are ery promising. Researchers are also occupied with

39
lAZ rom 10 July 2006 page 48.
40
SZ 03 August 2006: Killer-Lxperimente, l5N1-Kreation erstaunlich harmlos.
Lrwin Deutsch

62
iguring out the necessary doses o the accine or intracutaneous and
intramuscular injections, hoping to sae serum which in case o an emergency will
be needed in huge quantities.
41

Considering the risk o epidemics and pandemics rom a medical and legal
point o iew, in case o an emergency many requirements reoling around
experiments will be disregarded.
42
Personal requirements will either be relinquished
or strongly imposed upon. 1his includes the notiication o being a member o the
control group as well as suicient inormation and consent, although minimum
consent must remain required. Also, the country could initiate an obligation o
certain personnel to participate in trials.
43
lorgoing scientiic requirements such as
randomization or any kind o group organization is not easible. \hen a new drug
is tested, the group not inoled in the trial, e.g. all doctors and nurses o a speciic
region, can be gien the test drug by ways o extended access study.
44
It remains
uncertain whether insurance o the test persons can be waied, yet it would hae to
be limited to those actually participating in the trial. Insurance companies will
preer aoiding the risk. Maybe the goernment should step into the breach.
An entire array o accines can be tested with the immune response o the
body. In order to test a accine made to protect rom pneumococcs, or example,
1100 patients are diided into two groups, ater one month a crossoer takes place.
1he subsequent determination o the immune status o both groups, including the
placebo group, is then used to determine eicacy. 1he eicacy is supposed to be
determined without clinical controls. Obious doubts rom medical statistics
remain.
"I6 P&os8e'ts
Vaccination against smallpox was the ery beginning in the discussion about
medical experiments on humans. More than 250 years later we still ace the same
old problem. 1he possible attackers continue to be nature itsel through mutation
o her genes, but moreoer human kind.

41
notiication by R. 1hommsen
42
Wiesing u" !arck'ann, Line neue Pandemie - alte ethische Probleme. DABl. A 1888 een consider
imposing on basic human rights.
43
Already so described Car'i, 1he Challenge o Lxperimentation, in: Veroentlichungen des IV.
\eltkongresses r medizinisches Recht ,July 196,.
44
1his e+tended access stud0 was introduced unter this name by the lDA when experimenting with AZ1
and DDI against lIV inections. Since then, it has been used more and more oten in clinical studies,
especially regarding new drugs against absolutely deathly diseases such as renal cell carconoma.

SECTION 2:
CONTRACT LAW, INDUSTRIAL LAW AND
OVERNIN STOC! E"C#ANE

>-5('(al Mo5(f('at(on of Cont&a't (n Relat(on to t+e
C+an)e of C(&'-*stan'es
Youngjoon Kwon
I6 Int&o5-'t(on
One o the purposes o contract law is to enorce alid agreements. 1hereore, the
amous maxim o pacta sund ser/anda` ,one should abide by agreement,,
1
stressing
the sanctity o contract, stands as the most important principle in contract law.
Consequently, a contractual relationship is set orth at the time o the alid
contract, and is, in principle, not subject to alteration or annulment aterward
unless a new agreement allows it. loweer, there are cases where enorcing the
contract on its ace would put one party in a drastically disadantageous position
due to the e+ post change o circumstances surrounding the contract. Imposing
excessiely onerous burden on a aultless party who has neer assumed such an
unanticipated risk at the time o contract seems unair. 1he doctrine o change o
circumstances addresses this pathological issue o the contract law. 1his brie
paper touches upon this topic, particularly concentrating on judicial modiication
o contract as one o its remedies. 1his topic concerns itsel with the issue o
inormation and risk - main themes o this symposium - in that it deals with
symmetric inormation imperections on uture unoreseen eents as well as risk
allocation in the atermath o such changes. 1he argument set orth here is that the
modiication o the contract by the court, though it may and should take place
rarely only in exceptional cases, can be justiied as a necessary and justiiable tool

1
On this notion, See generally Reinhard Zimmermann, (he #aw of 8A-igations; Ro'an Foundations of the
Ci/i-ian (radition 543, 56-582 ,1990,.
\oungjoon Kwon

66
to preent grossly unair result. Although Germany has already recognized this
mechanism, Korea is unamiliar with this doctrine.
Against this backdrop, I hae structured this paper as ollows. In part , I will
gie a general oeriew o the doctrine o change o circumstances in order to set
the tone or a urther discussion. In part , I will make an obseration rom a
comparatie perspectie to show how prealent this approach o the judicial
modiication o contract has become on an international leel. In Part , I will
make normatie arguments on the necessity and justiiability o the judicial
modiication o contract to demonstrate that Korea may need to proide a legal
ground or this by legislating a releant proision. linally in Part , I will gie a
brie summary o what has been discussed and conclude with a ew remarks on the
prospect o this doctrine.
II6 ene&al o1e&1(e/ on t+e 5o't&(ne of '+an)e of '(&'-*stan'es
1. 1he doctrine o change o circumstances as a risk-allocation mechanism
1he doctrine o change o circumstances is, ater all, a doctrinal ehicle that
allocates unallocated risks o the contract. Contract concerns uture obligations.
Since uture is ull o contingencies, contract inherently aces certain uture risks.
In this sense, parties commonly assume and accept that circumstances may change
between the time o contract and the time o perormance. 1hereore, allocating
risks becomes the central element o a contract. Insurance contract, where
premium is set according to the scale o the risks, is a representatie example.
Other orms o contracts also presuppose this sort o risk assessment though not
as conspicuous as in an insurance contract. Sometimes, parties pre-allocate risks in
the orm o an explicit clause. lor instance, hardship clause
2
or MAC ,Material
Aderse Change, clause
3
are contractual mechanisms designed to handle
unexpected eents. Len when there are no explicit clauses like these, there may be
an implicit agreement between parties as to who bears the risk o unoreseen
eents in the uture. In principle, a promisor assumes risks associated with
perormance. 1hereore, a promisor bears an unconditional obligation to perorm

2
lardship clause is a clause in a contract that is intended to coer cases in which unoreseen eents
occur that undamentally ater the equilibrium o a contract resulting in an excessie burden being
placed on one o the parties inoled. See Stean Vogenauer & Jan Kleinheisterkamp ,ed.,,
Co''entar0 on the .,1DR81( 2rincip-es of 1nternationa- Co''ercia- Contracts)21CC*, 11 ,2009, or more
details.
3
A MAC clause is a sel-help clause that proides the right to terminate or renegotiate a contract
under speciied change o circumstances in the realm o M&A contracts or inancing contracts. 1his
clause enables the acquirer or a under to reuse to complete the transaction with the party being
acquired or inanced i certain material and negatie changes occur. See generally Daid Cheng,
1nterpretation of !ateria- 9d/erse Change C-auses in an 9d/erse Econo'0, 2009 Colum. Bus. L. Re. 564
,2009,.
Judicial Modiication o Contract in Relation to the Change o Circumstances

6
in principle. lor this reason, a change o circumstances does not automatically
inoke special treatment o the contract. Rather, a party is still bound to ulill its
contractual obligation een when perormance becomes onerous. 1hereore, a
mere act that the cost o perormance has increased may not excuse a party rom
its obligation. 1hus, een major changes in the economic climate do not
necessarily justiy judicial interention since the economy normally luctuates.
loweer, not all risks are the same. Some risks are gross, while others are
minor. Some are oreseeable, while others are not oreseeable. In reality, the limit
o human capacity to oresee the uture or bounded rationality o the parties makes
it impossible or them to assume all the uture risks in adance at the time o
contract. 1here are some risks that both parties hae neer anticipated, making
perormance excessiely onerous that it does not do justice to enorce the contract.
lere comes the necessity o an e+Bpost risk allocation mechanism by irtue o law
or the power o a court, instead o totally relying on a contractual ramework that
sometimes ail to proide a basis or alleiating or allocating such grae risks. 1his
necessity becomes een more signiicant when it comes to a long-term contract,
where its contractual relationship is ulnerable to a great number o contingencies
throughout the contractual term.
2. \orld-wide acceptance o the doctrine
A majority o countries across the world hae introduced some mechanisms to
correct such injustice resulting rom the change o circumstances, either in the
orm o law or legal doctrines.
A. Germany and other Luropean countries
Germany has deeloped a peculiar orm o doctrine on the change o
circumstances. BGB, with its liberal and indiidualistic conceptual model o the
contract, did not explicitly accept this idea at its irst codiication stage. 1he basic
rationale was to ensure legal certainty in legal transactions.
4
1his was also partly
due to the expansion o a will theory in the contract law as well as the retreat o the
natural law theory which supported the notion o c-ausu-a. loweer, Germany has
gone through a serious hyperinlation ater the lirst \orld \ar, the peak o which
was between 1920 and 1923.
5
It was eidently unair to enorce the contract on its
ace in the wake o an unprecedented hyperinlation. 1o address this problematic
situation, the Reichtsgericht ,RG, irst resorted to the notion o the impossibility

4
A similar notion was adocated by a publication in 1850 by \indsheid, Die Lehre des romischen
Rechts on der Voraussetzung ,1he Doctrine o Pre-supposition in Roman Law,`. Although the
legislators o BGB were amiliar with this notion, it was not incorporated in BGB.
5
At the end o 1921 - to some degree due to the reparation payments o the Versailles 1reaty o
1919 - prices were 35 times higher than beore the war. And a year later they had risen to a leel that
was 1,45 times higher. lannes Rosler, Hardship in Ger'an Codified 2ri/ate #aw I 1n Co'parati/e
2erspecti/e to Eng-ishE French and 1nternationa- Contract #aw, 15 LuRP, 48 ,200,.
\oungjoon Kwon

68
o perormance, which had already been codiied in 25 ,1, BGB. 1he RG, with
the notion o economic impossibility, released the party rom its duty to perorm
according to the aboe proision.
6
At the same time, the notion o
Geschtsgrundlage` was irst introduced by Oertmann in 1921.

Geschtsgrundlage, the basis o juridical act i translated literally, is the term
representing circumstances or perceptions shared by both parties at the closing o
the contract that orms the basis o contract. RG began to accept this notion rom
leb. 1922
8
on the basis o good aith doctrine in BGB 242, and this continued to
solidiy throughout numerous decisions to ollow.
9
In 2002, Germany codiied this
judge-made doctrine o Storung der Geschtsgrundlage` in BGB 313.
According to the aboe Article, modiication or termination o contract is made
aailable i the circumstances that hae become the basis o the contract hae
changed undamentally ater the contract was concluded.
Many Luropean countries - including Austria,
10
Greece,
11
Portugal,
12
Poland,
13

Spain,
14
Russia,
15
Italy
16
- hae also proided similar mechanisms either by statute
or case law. lrance and Lngland show some reluctance toward this based on their
strong adocacy o the sanctity o the contract. loweer, they are not without
remedies. lrance Ciil Code Article 1148 allows the release o the party rom
contractual obligation in the case o force 'ajeure. In lrench administratie law. the
i'prN/ision ,unorseeability, was recognized by the highest judges where adjustment
o contract was allowed at the occurrence o unoreseen eents.
1
In Lngland, the
doctrine o rustration handles this problematic situation, as I will explain below.
B. Lngland and U.S.A.
In common law, this mechanism partially inds its place in the doctrine o
rustration, and the doctrine o impracticability. 1he basic logic o the doctrine o
rustration is that i, ater a contract is made, something happens through no ault
o the parties and makes its perormance meaningless, the contract is said to be

6
RGZ 94, 45, 4, RGZ 100, 129, 130.
P. Oertmann, Geschtsgrundlage-Lin neuer Rechtsbegri ,1921,.

8
RGZ 103, 328.
9
RGZ 104, 394, RGZ 111, 15. BGlZ 25, 390, 392, BGlZ 4, 30, 32. likentscher,leinemann,
Schuldrecht, 10. Aul. ,2006,, S. 12.
10
ABGB 936, 1052, 110a, by way o analogy, sered as the statutory starting point or the
deelopment o the changed circumstance rule. Christian on Bar & Lric Clie, Principles,
Deinitions and Model Rules o Luropean Priate Law - Drat Common lrame o Reerence
,DClR,, lull Ldition ,2009,, Vol 1. p. 1.
11
Greek Ciil Code 388.
12
Portuguese Ciil Code 43.
13
Polish Ciil Code 35.
14
Spanish case law permits the court to end the contract i a less radical way o presering it cannot
be ound. Ole Lando & lugh Beale, Principles o Luropean Contract Law, Parts and ,2000,, p
328.
15
Russian Ciil Code 451.
16
Italian Ciil Code 146.
1
Conseil d`Ltat, 30 March 1916, Ga= de %ordeau+, D. 1916. III. 25.

69
rustrated, and the releant obligation comes to an end. Until the middle o the
nineteenth century, the common law always required speciic perormance o
contractual obligation under the rule o absolute liability`. loweer, (a0-or /"
Ca-dwe--
18
paed the way or the doctrine o rustration by establishing its
precursor, the doctrine o impossibility.
19
1he doctrine o rustration irst appeared
in Kre-- /" Henr0
20
, where a party was excused rom contractual obligation to make
payment or the room it had contracted to rent to iew King Ldward `s
coronation when the coronation parade was cancelled due to the King`s illness.
Unlike in (a0-or, perormance o the contractual obligation, payment in this case,
was not impossible. loweer, orcing a party to pay or the room was
inappropriate and meaningless. 1hus, the Lnglish court expanded the logic o the
doctrine o impossibility to the case where the purpose o the contract was
rustrated, thus establishing the doctrine o rustration.
Both doctrines were accepted in America. lor instance, the doctrine o
impossibility and rustration were both included in the Restatement ,Second, o
Contracts in Section 263 and 265. American courts went een urther than this.
1he doctrine o impracticability eoled out o the doctrines o impossibility and
rustration,
21
proiding a remedy where perorming one`s obligation becomes
impracticable, though not impossible. Section 2-615 o the Uniorm Commercial
Code deals with impracticability in the contest o sale o goods. Section 261 o the
Restatement,Second, o Contract touches upon this as well. 1his is in line with the
doctrine o the change o circumstances, or the notion o hardship that is
commonly used in the cross-border transaction contracts.
C. Japan and Korea
Inluenced by Luropean jurisdictions, Asian countries hae also taken on a similar
approach. Japanese Ciil Code, which has been quite inluential on Korean Ciil
Code due to the past colonization o Korea by Japan, does not include any explicit
and comprehensie proision on the change o circumstances. 1his is quite
understandable since Japan, at the stage o preparing its drat or Ciil Code, was
heaily relying on lrench Ciil Code and the irst drat o BGB, both o which did
not hae such a proision. loweer, under the inluence o the doctrine o

18
Lng. Rep. 309 ,1863,.
19
1he parties in the case had entered into a rental agreement concerning the use o the Music lall
or a series o concerts. Six days beore the planned date or the irst concert, the building was
destroyed by ire, making it impossible or the concerts to go ahead. 1he party planning to put on the
concerts was sued or breach o contract, but the action ailed because perormance was impossible,
thus establishing the doctrine o impossibility.
20
2 K. B. 40 ,1903,.
21
See !inera- 2ark #and Co" /" Howard, 12 Cal. 289, 156 p. 458 ,1916,, (ransat-antic Financing
Corporation /" .nited States, 363 l.2d 312 ,D.C. Cir, 1966,. . See also Paul L. Joskow, Co''ercia-
1'possiAi-it0E (he .raniu' !arket and the Westinghouse Case, 6 J. Leg. Stud. 119 ,19,, Richard Posner &
Andrew Rosenield, 1'possiAi-it0 and Re-ated Doctrines in Contract #aw; 9n Econo'ic 9na-0sis, 6 J. Leg.
Stud. 83 ,19,.
\oungjoon Kwon

0
Geschtsgrundlage in Germany, Japanese scholars and courts began to deelop
the doctrine o change o circumstances rom 1920s. 1he irst decision by the
highest court approing this doctrine was handed down in 1944. 1his doctrine
remains alid up to now.
1he Ciil Code o Korea does not hae any proision comparable to BGB
313, either. As mentioned aboe, Japanese ciil law has been inluential on Korea
and the doctrine o change o circumstances was no exception to this. Korean
scholars hae accepted this doctrine, mainly building on academic discussions by
Japan. \et, Korean judiciary has been extremely stringent in applying this doctrine.
It has neer accepted an argument based on this doctrine in a speciic case. Len
in a case where the alue o the object has hiked 1,620 times the original price due
to the Korean \ar, the Supreme Court rejected the application o the doctrine.
22

loweer, Korean Supreme Court has explicitly recognized the easibility o this
doctrine in its decision in 200,
23
though the argument itsel ailed to pass through
the strict muster o the Supreme Court. Recently, this doctrine has drawn attention
with thronging o multiple cases regarding KIKO contracts, which I will explain
urther at the later part o this paper.
D. Model laws
1his doctrine has been accepted not only by domestic laws, but also by
international model laws as well.
Luropean model laws,, such as Principles o Luropean Contract Law
,PLCL,` in 6:111 and Drat Common lrame o Reerence ,DClR,` in Book 3-
1:110 deal with this doctrine. lor example, PLCL 6:111 ,2, states that i,
howeer, perormance o the contract becomes excessiely onerous because o a
change o circumstances, the parties are bound to enter into negotiations with a
iew to adapting the contract or ending it` under certain conditions proided in
the same section, and section ,3, o the same article urther states that courts may
end or adapt the contract i the parties ail to reach agreement within a reasonable
period.
Principles o International Commercial Contract ,PICC,` by UNIDROI1
also addresses this in 6.2.1. through 6.2.3. Although it states this issue using a
dierent terminology o hardship`, a basic rationale and the solution are ery
similar to the aboe Luropean model laws. 1he incorporation o the doctrine on
an international-leel model laws shows that this is not worldly accepted doctrine.
24

22
Supreme Court 63Da452, Decided on Sep. 12. 1963.
23
Supreme Court 2004Da31302, Decided on Mar. 29. 200.
24
1his notion is also accepted in the realm o public international law, as can be seen in Art. 62 o the
1969 Vienna Conention on the Law o 1reaties and as an axiom o customary public international
law that also binds the LU Institutions,LCJ Case C-162,96-Racke|1998[ LCR -3655).

1
3. 1he requirements and legal consequences
A. Requirements
1here are multiple ways o describing the requirements o the change o
circumstances. 1he Korean Supreme Court has stated its requirements as ollows,
1 the change takes place ater the contract, 2 the change was not oreseeable at
the time o the contract, 3 the change has nothing to do with the ault o the party
claiming this doctrine, and 4 adhering to the original contract would yield
outcome contrary to good aith.
25
German BGB 313 requires that 1 the basis on
which the contract was made has drastically changed, 2 the same contract should
not hae been made i the party has oreseen the change, and 3 the party cannot
be expected to bound to the original contract in consideration o all the
circumstances including risk-allocation. PLCL 6,111 suggests that 1
perormance o the contract becomes excessiely onerous because o a change o
circumstances, 2 the change o circumstances hae occurred ater the contract
was made. 3 circumstances should not hae reasonably been taken into account
by the parties, and 4 the risk o the change o circumstances is not one which,
according to the contract, the party aected should not be required to bear.
Although languages are dierent, three actors seem to play a dominant role.
lirstly, there is a change related actor. 1he change has to be excessiely
onerous and unoreseeable. In general, price luctuation due to the inlation does
not satisy this requirement since it is neither excessiely onerous nor
unoreseeable. 1his is to be distinguished rom the notion o impossibility in the
sense that the perormance is still possible, though the borderline is sometimes
blurry. Additionally, it should not arise rom the obligor`s ault. One should not be
allowed to beneit rom her own ault.
Secondly, there is a time related actor. 1he change should take place ater the
contract was made. I this change has already taken place at the time o contract,
and the parties hae ailed to take notice o this, it is not a matter o change o
circumstance but rather a matter o mutual mistake. low mutual mistake is to be
handled diers among jurisdictions. lor example, Germany would take this issue
in the same ramework o Geschtsgrundlage`, while Korean Supreme Court
dealt with this case rom the perspectie o supplemental interpretation o contract
,ergnzende Auslegung,.
26
1hough both approaches share the notion o the
judicial interention, the latter is slightly dierent rom the ormer in the sense that
it does not completely lose the connection with the intention o contract parties,.
1he notion o Geschtsgrundlage allows judicial gap-illing without regard to the
parties` intention, whereas the notion o supplemental interpretation o contract
presupposes hypothetical intention o the parties.

25
Supreme Court 2004Da31302, Decided on Mar 29. 200.
26
Supreme Court 2005Da13288, Decided on No. 23. 2006.
\oungjoon Kwon

2
1hirdly, there is a risk-allocation related actor. I the risk has already been
allocated to the parties by way o contract, there is no room or the doctrine o
change o circumstances to step in. \hen there are explicit proisions against
uture risks, those proisions will goern. 1he mere act that a gien risk is a low
probability risk does not mean that it has not been oreseen or assigned to one or
the other party.
2
Insurance contract is a typical example o risk-allocation oer a
low probability risk. Len when there are no such proisions, the court should see
to it that i the risk has implicitly been assumed or allocated between parties. A
more speculatie contract is more likely to hae allocated the risk in adance. lor
instance, a sale on the uture market is a speculatie contract. 1hus, one might
easily assume that the party has already born the risks in adance. Same thing can
be said o KIKO contract, which has been quite a controersial legal issue in
Korea. KIKO ,Knock-in, Knock-out, contract is a currency hedging contract
designed to reduce potential risks rom oreign exchange rate luctuations. Under
the contracts, exporters could sell dollar earnings at a higher exchange rate to the
banks when the currency luctuates, thereby hedging the luctuation risks. 1his will
gie bank some losses in return or contract ees. loweer, i the oreign currency
strengthens against the won oer a speciied limit, the exporters must sell oreign
currency at a lower rate, which leads to losses o exporters and gains o banks.
Contrary to the common expectation, oreign currency has dramatically soared up
in the wake o global inancial crisis, leading to tremendous losses o exporters.
Concerned exporters hae iled total o more than 110 cases, arguing the inalidity
o this contract on arious arguments.
28
Among them was the argument based on
the change o circumstances. 1hough there was a case where the court has decided
that it amounts to the change o circumstances, thereby granting an exporter the
right to terminate this contract,
29
courts generally hae been reluctant to accept this
argument.
30
1his outcome can easily be understood rom the risk-allocation
perspectie. 1he contract itsel was aimed at hedging or allocating risks arising out
o currency luctuation. 1hereore, the exporter has already agreed to assume the
risks at the time o contract. In this case, there is no room or the doctrine o
change o circumstances.
Korean Supreme Court also suggests the requirement based on good aith
principle. loweer, the aboe three actors already presuppose good aith or
airness basis. 1hereore, it would be suicient to consider airness in the process
o interpreting those requirements.

2
Michael J. 1rebilcock, 1he Limits o lreedom o Contract ,1993,, p 128.
28
As o leb. 16. 2010, 11 KIKC-related cases are pending at the leel o the court o irst instance.
29
Seoul Central District Court, 2008Kahap3816, Decided on Dec. 30. 2008.
30
lor example, Seoul Central District Court, 2008Kahap4262, Decided on Jan. 8, 2009, Incheon
District Court, 2009Kahap228, Decided on Mar. 9. 2009, Seoul ligh Court, 2009Ra99, Decided on
Aug. 21. 2009.

3
B. Consequences o the changed circumstances
\hen the change o circumstances satisies aboe requirements, special legal
consequences come into being.
Most jurisdictions that do recognize the doctrine o change o circumstances
discharge a concerned party rom her obligations. Korean Supreme Court has
declared that the party suering the change has the right to terminate the contract.
German BGB 313 expressly states that the disadantaged party can terminate the
contract, i a modiication is not possible or reasonable. 1he Restatement o the
Contract ,2
nd
, 265 in the U.S.A., with regard to rustration, states that remaining
duties to render perormance are discharged unless the language or circumstances
o the contract indicate the contrary`. PLCL, PICC and DClR take similar, but
somewhat dierent approach. In those model laws, the court, upon the request o
parties, inally determines the termination as well as its terms and conditions
,PLCL 611 ,3,,a,, PICC 6.2.3. ,4,,a,, DClR Book 3, 1:110 ,2,,b,,.
Another possible treatment is a modiication o the contract. lere, the
modiication reers to the judicial modiication, meaning that the court inally
decides or at least conirms the terms and conditions o the modiication.
Voluntary modiication by parties is also possible and desirable. loweer, this is
rather a consequence rom new agreement than a consequence rom the change o
circumstances itsel. \hether or not judicial modiication o contract is an
acceptable orm o the legal consequence is highly controersial. 1his is the ery
topic addressed in this paper. 1hereore, I will examine this issue more in depth
and details later on.
In addition to the aboe consequences, there is an issue o the obligation o
renegotiation. lor instance, PLCL 6:111 ,2, requires parties to renegotiate beore
they demand or modiication or discharge o the contract. 1he aim is clear, to
acilitate autonomous solution between parties beore seeking a court remedy. I
one o the parties reuses to renegotiate contrary to good aith, she is subject to
damages. loweer, PICC and DClR do not recognize the duty to renegotiate.
Domestic laws are not aorable to this approach either. In Germany, the parties
are not bound to renegotiate according to preailing iew.
31
Likewise, neither the
Italian nor the Dutch Code proisions on hardship oblige the parties to
renegotiate. Although it is clear that autonomous dispute resolution by
renegotiation should be aored than judicial interention, it does not necessarily
lead to the conclusion that parties hae obligations` to renegotiate.

31
See Grneberg in, Palandt, BGB, 6. Aul. ,2008,, 313, Rn. 41. lor an opposite iew, see Roth in,
Mnchener Kommentar zum BGB, 5. Aul. ,200,, 313, Rn. 90.
\oungjoon Kwon

4
III6 Co*8a&at(1e o1e&1(e/ on t+e <-5('(al *o5(f('at(on of
'ont&a't
Luropean jurisdictions generally show aorable stance to judicial modiication o
contract. As mentioned aboe, Germany has employed judicial modiication o
contract as a prior remedy or the change o circumstances in BGB 313.
32

Netherland , 6:258,, Greece , 388,, Italy , 1664,, Russia , 451,, and
Scandinaian contract law , 36, hae adopted the same deice. In other countries,
judicial modiication is allowed in either common mistake as can be seen in
Luxembourg , 1118,, Portugal , 293,, and Austria , 82, or unair contract as
can be seen in lrance , 1681,, Austria ,935, or Sloenia , 119,. 1his wide
tendency to admit judicial modiication o contract is also ound in Luropean
model laws such as PLCL or DClR. In PLCL 6:111, judicial modiication o
contract is enumerated as the irst remedy against change o circumstances. DClR
has almost identical clause in 1:110 in Book 3. PICC, prepared as the global
contract principles by UNIDROI1, takes the same stance in 6.2.3.
Lngland and U.S.A. hae been reluctant to accept this attitude. loweer, the
controersial decision by the U.S district court in 1980 has sparked a debate as to
the adequacy o court-imposed modiication. In Aluminum Co. o America
,ALCOA, . Lssex Group, Inc.,
33
the court chose to modiy the contract itsel,
instead o taking all-or-nothing approach. In this case, ALCOA entered into
twenty-year contract with Lssex, agreeing to supply molten aluminum. 1hey had
price-adjustment index within a contract, with the help o economist Alan
Greenspan, to correlate the price with luctuating costs. 1his contractual deice o
risk-allocation worked ine until economic upheaals caused by oil crisis drastically
raised the costs ar beyond the basic presumption o the index. 1his let ALCOA
with an estimated sixty million dollars loss on the contract. 1he court has modiied
the contract, instead o discharging ALCOA rom contractual relationship or
conerring all burdens on the shoulder o ALCOA. 1his conclusion, howeer,
caused controersy. \hile some commentators welcomed this approach,
34
it
inited criticism as well.
35
1here is no decision to the same eect ater ALCOA.

32
1he Lnglish ersion o 313 ,1, BGB reads as ollows. I circumstances which became the basis
o a contract hae signiicantly changed since the contract was entered into and i the parties would
not hae entered into the contract or would hae entered into it with dierent contents i they had
oreseen this change, adaptation o the contract may be demanded to the extent that, taking account
o all the circumstances o the speciic case, in particular the contractual or statutory distribution o
risk, one o the parties cannot reasonably be expected to uphold the contract without alteration.`
33
499 l. Supp. 53 ,\. D. Pa. 1980,.
34
Robert \. Reeder, CourtBi'posed 'odifications; Supp-e'enting the 9--BorB,othing 9pproach to Discharge
Cases, 44 Ohio St. L.J. 109 ,1983,, Robert lillman, Court 9djust'ent of #ongB(er' Contracts; 9n
9na-0sis .nder !odern Contract #awE 198 Duke L.J.
35
Andrew Kull, !istakeE FrustrationE and the Windfa-- 2rincip-e of Contract Re'edies, 43 lastings L.J. 1
,1991,.

5
1hereore, it is not certain at this point i this approach has reached the position o
doctrine.
36

Now looking at Last-Asia region, Japan or Korea has no proision or doctrine
justiying the judicial modiication. Although inoking on good aith principle to
modiy the contract made by parties seems theoretically possible, this has neer
happened. loweer, there is notable sign o change in Japan. Japan is in the
process o preparing the drat or a large-scale ciil code amendment. In April
2009, the concerned committee has published the Basic Principles o the
Amendment o Japanese Law o Obligations ,hereinater Principles`,`, which is
likely to sere as the ery irst drat. Article 3.1.1.91 o the Principles proides a
general proision or the requirements and eects o the change o circumstances.
It proposes that the party o the contract can request the court to modiy the
contract at issue by presenting a drat o what she thinks to be the most adequate.
Korea has also considered introducing similar proision back in early 2000s. 1he
Ministry o Justice has launched the committee or the amendment o Korean Ciil
Code back in 1999. In the process o creating a drat, the committee members
unanimously agreed that a proision goerning change o circumstances needed to
be codiied. 1he committee also considered judicial modiication as one o the
possible remedies or the change o circumstance. loweer, this proposal was
rejected by a narrow margin ater some discussion. 1he main ground or the
rejection was that it might impair party autonomy in contract law and that it will
increase the caseload due to the outcry o contract party`s call or modiication.
IV6 T+o-)+ts on t+e <-5('(al *o5(f('at(on of 'ont&a't
laing examined the comparatie background o this issue, I turn to the issue o
the judicial modiication o contract. Since Germany has already accepted and
codiied this doctrine, I analyze this issue rom Korean perspectie.
laing no proision to goern this issue, there are two dimensions to this
discussion. 1he irst dimension regards the easibility o the judicial modiication
within current ciil code, with no express proision. It may be possible, as can be
seen in Germany. 1hough there was no explicit ground in BGB, German court has
deeloped this doctrine under BGB 242, which stipulates good aith principle. In
theory, this may be easible in Korea as well. \et, I eel that it is just too much a
stretch o good aith principle. Good aith principle is the last instrument to rest
on, and should be used in moderation. Germany was in an exceptional
circumstance - the hyperinlation in the atermath o the lirst \orld \ar - when
they irst created this doctrine. \ithout such an extraordinary actor, stretching
good aith principle to such extent seems uneasible considering the strict attitude

36
Restatement o Contract ,2
nd
, 265 reers to the change o circumstances. loweer, it only states
the discharge o obligation as its legal consequence. In contrast, American Jurisprudence ,2
nd
, 51
addresses judicial modiication o contract based on ALCOA decision.
\oungjoon Kwon

6
o the Korean Supreme Court toward the doctrine o change o circumstances.
1he second dimension regards the easibility o the judicial modiication on a leel
o legislation. It concerns the desirability o accepting judicial modiication o
contract on a legislatie leel as a means to resole problematic situations caused
by the change o circumstances. Since Korean Ciil Code Amendment is now in
progress, this may be a possible and realistic way o accepting it. 1hereore, I
address the desirability o allowing judicial modiication in the would-be amended
Korean ciil code. I will examine this rom two iewpoints, necessity and
justiiability.
1. Necessity
1he irst challenging aspect o this issue is that the judicial modiication o contract
rarely takes place een in countries where they explicitly allow this. lurthermore, in
those rare cases where this mechanism should step in, jurisdictions without such
proision already hae some substitute mechanisms that can work nearly as ine.
1his raises the issue o necessity. I it is seldom used and has some other
alternatie means by which the same result can be reached, what is the use o
codiying this controersial doctrine 1he argument in a more detailed ersion will
be as ollows. Courts will seldom eel the need to exercise the judicial modiying
power, een when they can do so. Change o circumstances that is grae enough to
justiy annulment or alteration o the contract rarely happens in reality. 1he act
that Korean Supreme Court has neer accepted the argument based on the
doctrine o change o circumstances iidly supports this statement. Len when
the case at issue satisies strict requirements proided by this doctrine, courts can
still reach the same conclusion by using other methods without taking troubles to
modiy the contract. 1here may be explicit contractual clauses, such as orce
majeure or hardship clauses, that hae already allocated these risks between parties,
making judicial interention unnecessary. Len when there are no such clauses,
court may take this issue in the context o contract interpretation. Despite the non-
existence o such clauses, courts may assume that there has been an implicit
agreement on who will be bearing unoreseen risks. 1he recognition o such
agreement also bars judicial interention, at least ostensibly. In act, Korean courts
hae been irtually modiying the contract in the name o interpretation and good
aith principle. Court-led mediation procedure has also played a great role in
modiying the contract to suit the notion o airness. Considering all these
alternatie means to guarantee air outcome, there is little necessity to recognize
explicit mechanism o judicial modiication o contract.
1he aboe argument has its own merits. loweer, it does not lead to the
conclusion that there is no necessity at all. In addition, not all the proisions in
Ciil Code are meant to be used extensiely. Some are used on a daily-basis, while
some are proided or a just-in case situations`. 1hing is that there are these sort
o extreme situations. 1ime-limitation or lack o experience may cause a party

unable to take reasonable steps to consider eects o the extreme contingencies.
Len the most considerate parties can ail to do so. lurthermore, the dierence o
the legal culture may aggraate this. Compared with American contracting culture,
Luropean and Asian cultures are relatiely accustomed to simpler and shorter
contracts, especially in contracts where indiiduals, as opposed to corporations, are
inoled. In these cases, a problem associated with a gap between contract and
circumstances typically arises. 1he altnernaties mentioned aboe may not be able
to get rid o the gap completely. It is eident that something needs to be done with
regard to the gap arising out o the contract and the unoreseen circumstances.
1he ideal way o soling this deadlock is to make a new agreement based on the
changed circumstances. loweer, reaching a new agreement is not something that
you can always expect to take place. Lxcusing an obligor rom contractual
obligation is one o the remedies in this regard, as is ound in a large number o
jurisdictions. \et, this remedy stands on all or nothing approach` that renders ine-
tuning o the contractual interests o both parties uneasible. 1his is also true when
both parties intend that the contract be presered but ail to ind a solution by
themseles due to opposing micro-interests. In this context, the court needs to
step in prudently and draw out the airest conclusion. \hat courts do in the name
o interpretation or good aith principle has its own limitation. 1hough soling the
contractual dispute by way o interpretation seems attractie since it preseres the
party autonomy while enabling the air outcome, interpretation should be based on
the intent o the parties. Courts can enorce a contract only to the extent o the
agreed terms. Stretching outside this scope is not an interpretation, but a hidden
orm o judicial creation o the contract. I am not saying that this unction, which
exists in practice, should be completely expelled. Rather, I am saying that this
should be done in a more upront way based on the statutory ground proided by
legislators. Good aith principle, due to its amorphousness, also has its dangers o
misuse or oeruse. 1his is why good aith principle should yield its way to speciic
proisions containing explicit requirements. Ater all, those proisions all
incorporate the spirit o good aith principle, yet proide more reined solutions.
1hereore, proiding a way by which a court can interene to sole the dead-lock
contractual dispute is a candid and reined way o dealing with this issue.
2. Justiiability
\ould it lead to air and eicient outcome \ould it not inite too wide judicial
discretion into the realm o contract law where legal certainty and stability need to
be presered As or the justiication o the judicial modiication, three aspects o
this issue - airness, eiciency, and the role o the court in contract law - come
into our sight.
\oungjoon Kwon

8
A. Possible concerns
1he argument against judicial modiication may raise ollowing concerns.
)a* 2art0Bautono'0 and fairness concern
In the irst place, judicial modiication is not consistent with the notion o airness.
It inringes upon the autonomy o the party, the ery oundation o the contract
law. 1he interention o the court seems, on its ace, to be enhancing air and just
outcome o a speciic case. loweer, its airness is not guaranteed. Rather, it will
all to arbitrariness o the judicial discretion, thereby sometimes rendering bizarre
outcome. 1his problem will be aggraated when the resolution o the dispute calls
or highly sophisticated and specialized knowledge and experience, which judges
usually lack.
)A* 1nefficienc0 concern
Secondly, judicial modiication is likely to undermine eiciency. It will lower legal
certainty and stability, which will in turn chill market actiities. Moreoer, it is the
most eicient way to hae parties proide releant contractual clauses in adance.
1he possibility o judicial modiication o a contract will seerely decrease
incenties to negotiate and incorporate such clauses. Same can be said o the
incenties to purchase insurance plans that can spread the risks. 1hese will lead to
the increase o dispute-resolution costs. 1he increase o the costs will occur in the
ollowing sense as well. Parties who eel that they hae been disadantaged by
unoreseen eents will throng to the court to demand modiication o the contract.
In turn, court might hae to use considerable time and energy in the process o
modiying the contractual terms o tons o cases.
)c* udicia- e+pansion concern
1he third and inal point ocuses on the ear o the emergence o despotic court in
the realm o contract law. Contractual relationship is to be created, altered, and
extinguished by the parties. 1he interention o the court in this regard should
remain minimal. As mentioned aboe, judges are by no means wiser than parties in
terms o inormation as to what will enhance their interests. 1his is especially true
when it comes to a contract between sophisticated parties.
3

3
Benjamin L. lermalin & Michael L. Katz, udicia- !odification of Contracts %etween Sophisticated 2arties;
9 !ore Co'p-ete 3iew of 1nco'p-ete Contracts and (heir %reach, 91. J.L.Lcon & Organization 230 ,1993,.

9
B. 1houghts
Although the aboe arguments hae their own merits, the judicial modiication o
contract can still be justiied or the ollowing reasons.
)a* 8n part0 autono'0 and fairness
In the irst place, I doubt i judicial modiication o contract inringes upon party
autonomy. 1he supremacy o a party`s contractual reedom is unquestionable in
the realm o contract law. \et, the interention o the court in the aboe context
does not directly conlict with parties` contractual reedom. Contractual reedom
has its own ambits. It is only to be respected when there exists a contract or an
intention to make a contract. \hen things at issue all outside the realm o
contract, no binding contract exists. 1he judicial modiication o contract only
matters when there is indeed no agreement oer who will bear risks to what extent.
lurther, this only matters when the parties inally ail to reach a new agreement to
deal with the situation. In reality, this ailure is something we can naturally predict.
Parties would typically not enter into modiications unless they both eel better o
relatie to the position that would or might hae obtained without a
modiication.
38
1his is where legal or judicial interention is justiied. In addition,
contract parties are completely at liberty to contract out o this interention by
proiding such clauses in a contract. lor example, they may put an arbitration
clause to bar the court rom stepping into the contractual dispute resolution, or
they may agree to deny any sorts o judicial interention at any unexpected
incidents. 1his is possible since the proision or judicial modiication o contract
will stay merely as a deault rule, not as a mandatory rule.
lrom the airness standpoint o iew, this can enhance airness o the
outcome. 1his is the ery reason why a substantial number o countries and
international model laws hae opted to allow this. Leaing risks outside the scope
o contract as they are, leads to undesered gains or losses o contract parties.
Rigid adherence to all-or-nothing` approach, as opposed to what I would call as
sharing` approach, can oten lead to injustice and ail to ine-tune micro interests
o contractual parties.
39

)A* 8n inefficienc0
lrom the eiciency standpoint o iew, judicial modiication o contract can leae
eiciency o the contract unharmed, and sometimes een enhance it. 1his may be
explained both rom e+Bante and e+Bpost perspecties. lrom e+Bante perspectie,
making a complete contract, meaning proiding contractual clauses or eery

38
Michael J. 1rebilcock, 1he Limits o lreedom o Contract ,1993,, p 136-13.
39
Charles lried argues that in many cases where both parties are harmed and neither is at ault, the
principle o sharing comes into play. 1his principle applies where no conergent intentions exist as to
the contingency in question, no one in the relationship is at ault, and no one has conerred a beneit.
Sharing applies where there are no rights to respect. See lried, Contract as Promise ,1982,, 69-4
\oungjoon Kwon

80
possible contingency, is impossible or too costly in reality. Strict rule o discharge
would only create an incentie to write a more detailed and complicated contract,
thereby creating additional negotiation costs.
40
Moreoer, assigning all the risks to
a certain party may increase transaction costs in trying to insert additional
proisions to allocate risks in a dierent manner.
41
1he strength o incomplete
contract is that parties do not hae to inole themseles into time and money-
consuming negotiations and writing process to come up with complete contract, as
long as there are reasonable deault rules and judicial gap-illing mechanisms
supplementing what was not expressly bargained or. 1hereore, the judicial
modiication o contract can reduce unnecessary costs o complete contract. lrom
e+Bpost perspectie, judicial modiication o contract can contribute to the
continuation o the contractual relationship. 1his is particularly true in the long-
term contract.
42
In contrast to demolishing the contractual relationship where
parties might hae inested so much o their resources, maintaining it by
modiying it may enhance eiciency. A concern on the increase o the litigation is
somewhat oerstated. Proided that the court take a strict stance toward applying
the proision, as witnessed in many jurisdictions with this proision, the litigation
won`t dramatically increase in the long run.
)c* 8n the ro-e of the court in contract -aw
lrom the judicial role standpoint o iew, this can be justiied as well. Contract law
is not only a norm o parties, but also a norm o a community. 1here are a great
number o proisions in current ciil code where things are soled by law or
judges, not by parties either due to the lack o contract in contractual disputes or
due to the need or protecting undamental social alues. 1hus, contract law
embraces both autonomy and social alues. Contract law is a not a regime that is
entirely internal to the parties to the contract. On top o this, it is noteworthy that
there is a gradual paradigm-shit taking place, mainly in Lurope, that permits more
judicial discretion than beore in the area o contract law. 1his may be a relection
o anti-ormalism in contract law, or a relection o dierse and risk-ull world
where a great number o interest-actors should be taken into account or a more
reasonable outcome. lor example, PLCL widely uses the notion o reasonableness
as well as good aith, which inites some degree o judicial discretion. 1his
tendency still exists in PICC or DClR, where strict rules are gradually replaced by
lexible standards. \hether or not this tendency is desirable is subject to urther

40
Paul L. Joskow, Co''ercia- 1'possiAi-it0E the .raniu' !arket and the Westinghouse Case, 6 J. Legal Stud
119, 154 ,19,.
41
Charles 1abor, Dusting off the Code; .sing Histor0 to find E:uit0 in #ousiana Contract #aw, 68 LA. L.
Re. 549, 563 ,2008,.
42
Ian R. Macneil, Contracts: Adjustment o Long-1erm Lconomic Relations under Classical,
Neoclassical, and Relational Contract Law`, 2 Northwestern Uniersity Law Reiew 854, 905 ,19-
198,. Also see lried, Contract as Promise ,1982,, 69-4 where he acknowledges that there are gaps
that cannot be illed by the promise principle, or the simple reason that the parties hae no
conergent intentions.

81
discussion. loweer, it is eident that there are cases where judicial discretion
needs to step in. Courts should be highly prudent not to impound on parties`
autonomy, but should be lexible once the case qualiies the stringent
requirements. It is true that courts are not always better than parties in drating a
modiied contract since they hae limited inormation as to parties` circumstances
and preerences. lirst o all, this is a common eature o nearly eery litigation.
Parties are nearly always in a better position to acquire inormation as to the
disputes and their well-beings. \et, it does not necessarily mean that courts cannot
adjudicate the case due to their ineriority in terms o inormation. Moreoer, in
practice, courts are likely to consider the drats o a contract and releant
inormation competitiely presented by both parties to get a better result.
V6 Con'l-s(on
I hae so ar examined the easibility o the judicial modiication o contract in the
changed circumstances. 1his is not likely to be allowed under current ciil code
regime, gien the strict stance o the Supreme Court toward the doctrine o change
o circumstances and the lack o explicit proision proiding the ground or the
modiication. \et, there is room or discussion oer this issue in the process o the
Ciil Code amendment, though it will cause ierce controersy.
I am o the opinion that the judicial modiication o contract as a legal
consequence o the change o circumstances can be justiied in exceptional cases,
as I hae so ar argued. In principle, contract law is the typical domain resered or
sel-determination. \et, judicial modiication can unction as the last resort to
ensure air outcome in extremely onerous cases. I that is the case, it is better to
regulate that exceptional realm by legislation, rather than leaing it to the realm o
interpretation or good aith. A comparatie study on this matter also shows a wide
trend toward accepting this mechanism.

Ne/ De1elo8*ents (n Data P&(1a'. fo& E*8lo.ees
(n e&*an La/
Rdiger Krause
I6 Int&o5-'t(on: On t+e /a. to a Wo&:e& Data P&(1a'. A't
In December 2010 the German Goernment passed the drat bill o an Act on
employee data protection.
1
Although the bill is contested not only between
employer associations and trade unions but also within the Goernment, it is
expected that the Act will enter into orce in 2011 bringing a long lasting
discussion to its end. 1he irst demands or a particular act on data protection or
workers go back to the 1980s but or a long time the German legislator didn`t
make any real attempt to regulate this topic. 1he situation changed in 2008, when
the abuse o employee data in seeral large German companies became public.
2

Drien by the public, the preious Goernment reacted immediately and inserted
just beore the last election in 2009 a single proision into the lederal Data
Protection Act ,~ Bundesdatenschutzgesetz ~ BDSG, which expressly addresses
worker data priacy or the irst time. At the same time the Goernment
announced that this amendment should only be an interim solution and should be

1
B1-Drucksache 1,4230 o 15,12,2011.
2
Seeral retailers hae spied on their employees with hidden ideo cameras at the workplace.
German 1elekom has wiretapped employees who are suspected o passing conidential inormation
on to journalists. German Railway has executed a urtie screening o personal data o some 10.000
employees in order to uneil and preent corruption. More details on these and other comparable
cases in DKuA-er, Glserne Belegschaten, 5. Aul. ,2010,, Rn. 2a .
Rdiger Krause

84
ollowed by a more detailed Act. 1he new Goernment, in oice since all 2009,
has picked up that project and started the current legislatie procedure.
1his paper does not aim to go too much into all details o the existing lederal
Data Protection Act or the current drat o an amendment to this Act. In act it
will ocus on some more general problems. lirst, the paper tends to analyse the
conlicting interests each legal order has to consider in the issue o data priacy o
employees ,II,. Secondly, it will turn to the legal background and in particular to
the approaches o German and Luropean law ,III,. 1hirdly, this paper will sketch
some main aspects o the new Act and tackle some speciic problems ,IV,.
II6 Confl('t(n) (nte&ests
1. Lmployer interests
As regards the employer interests at stake one should distinguish between the
situation prior to and ater the conclusion o the employment contract.
In the pre-contractual phase the employer aces a dilemma: On the one hand
the employer has an economic interest to get the best quid pro quo or his pay. On
the other hand the alue o an employee cannot be assessed entirely at the moment
o the conclusion o the employment contract, but only by experience i he or she
has worked or some time in the enterprise. So the employer must decide with
uncertainty whether or not he will hire a particular applicant. In order to gain a
maximum o output or his input and to aoid or minimize risks adherent to the
person or the behaiour o the employee, the employer has an interest to gather as
much inormation as possible on the applicant or a job. In detail, the employer is
interested to know whether the applicant is suiciently qualiied or the job, has a
strong physical and mental condition and doesn`t hae attitudes which can cause
rictions with the employer, other employees or customers.
1o put it more generally: In a market economy eery actor needs a high leel
o inormation as the basis or a rational choice because the actor will bear the
risks i the decision turns out to be disadantageous. In this respect the possibility
o grasping inormation is the backbone o priate autonomy and is consistent
with the general principle o the inormed consent as a concept o modern
contract law.
3

Ater the closing o the employment contract the situation changes in
principle. In institutional terms the employment relationship is a principal-agent
setting. 1he employer as principal has an interest that the employee perorms his
work in a proper manner and does not iolate his obligations by causing any
damage or een criminal acts like thet or raud. But the employee as agent can

3
C. Grund'annHKerAerHWeatheri-- ,Ld.,, Party Autonomy and the Role o Inormation in the Internal
Market ,2001,.
New Deelopments in Data Priacy or Lmployees in German Law

85
misuse his position as contract partner and or example could work slowly or deal
on his own account. 1hus, the employer is interested in monitoring the employee
to guarantee a speciic behaiour and preent moral hazard.
More generally the employer has an interest to collect all data he needs to
organize and optimize the operations within the enterprise. An economic success
depends on inormation on the enironment o the company like the general
market conditions but irst and oremost on precise inormation on the operating
procedures. A lot o personal data o workers is rom the employer`s point o iew
mere operational data.
4
lence, one o the undamental questions o eery
regulation on worker data priacy is who owns` the data that are both personal
and operational.
One particular problem is the saeguarding o compliance. Compliance is one
o the most discussed keywords in the context o data priacy o employees in the
past ew years
5
and it is oten used as an argument against a strict regulation on
data protection. 1he German legislator has mentioned it in its grounds or the
current drat too.
6
But what is the meaning o compliance and in which way is
compliance connected with data priacy o employees
Compliance can be conceptualized as regarding o rules. 1hese rules can be
imposed on the employer by external actors, in particular by the legislator, or they
can be created internally by the employer himsel. In the latter case it is an
additional problem whether or not the employer actually has the authority to create
rules which he wants to enorce by obsering employees.
It is clear that there is

no legitimate interest in collecting employee data i the goal, namely to enorce a
regulation, is in itsel inalid. lence, the saeguarding o compliance can be used as
an argument against a rigid data priacy law but it can not be used in all cases.
2. Lmployees
On the side o the employees there are tangible and intangible interests. lirst, the
worker might hae an interest to hide particular data because the disclosure o
these data would worsen his chances to get the job. Secondly, he has an interest
not to be handled like an object. Nobody wants to be seen only as a sum o data

4
H" %uchner, Vom glsernen Menschen` zum glsernen Unternehmen`, in: Zeitschrit r
Arbeitsrecht ,ZA,, 1988, 449-488 ,at 451 .,
5
Kort, Zum Verhltnis on Datenschutz und Compliance im geplanten Beschtigten-
datenschutzgesetz, Der Betrieb ,DB, 2011, 651-655, (hsing, Arbeitnehmerdatenschutz und
Compliance ,2010,.
6
B1-Drucksache 1,4230 o 15,12,2011, p. 1.
A much debated issue is the enorcement o ethics rules` o U. S. corporations like loneywell and
\al-Mart under German Law, c. BAG 22..2008 - 1 ABR 40,0 - BAGL 12, 146 ~ NZA 2008,
1248, LAG Dsseldor 14.11.2005 - 10 1aBV 46,05 - NZA-RR 2006, 81, DeinertHKo--e, Liebe ist
Priatsache. Grenzen einer arbeitsertraglichen Regelung zwischenmenschlicher Beziehungen, Arbeit
und Recht ,AuR, 2006, 1-184, Kort, Lthik-Richtlinien im Spannungseld zwischen US-
amerikanischer Compliance und deutschem Konzernbetriebserassungsrecht, Neue Juristische
\ochenschrit ,NJ\, 2009, 129-133.
Rdiger Krause

86
which are used by others persons or their selish goals. Len more, nobody wants
to be monitored permanently by other persons. An unlimited obsering and
indexing o personal data touches human dignity. lurthermore the collecting o
personal data might inluence the behaiour o the employee. I the worker does
not know which personal data are gathered by the employer or een i he knows it
is likely that he will behae in a manner which he assumes to be wanted by the
employer. 1his does not only mean to work as hard as possible and to aoid
negligence. Depending upon the concrete personal data which are collected it is
possible that the employee stops acting naturally because he ears that the
employer will draw negatie consequences. lor example, the employee will omit to
go to the toilet i he or she knows that eery walk to the toilet will be exactly
registered.
3. Common goals
Concerning the common goals, dierent aspects can be distinguished. lirst, there
is a common goal that enterprises unction eiciently so that they can proide job
opportunities and pay taxes. But this is not automatically an argument in aour o
weak data protection law and the possibility to obsere employees without
restrictions. 1he eiciency o enterprises and the eiciency o the economy all
depend on the existence o a certain leel o mutual trust between employers and
employees. An economic system in which the employees are demoralized because
they were generally treated with distrust will not work properly. 1hus, personal
data priacy can enhance the so called social capital` within a society and produce
more eiciency.
Secondly, the compliance issue has to be mentioned once again. In respect o
corruption, antitrust, accounting standards, enironmental law and so on society
expects rom employers that the enterprise as a whole does not iolate the law.
Gien that enterprises are only working with the help o their employees there is a
common goal to enable the employers to combat criminal acts which would be a
detriment to the society as a whole.
A particular problem will be the execution o internal inestigations i there is a
worker suspected to hae committed a criminal act. I the prosecutor starts
inestigations against a suspicious employee the worker is protected by speciic
rights o criminal procedure law. I the employer takes the inestigations in his
own hands there is the danger that the employee lacks these rights.
1o sum up, the problem o data priacy in the ield o employment touches
ery dierent aspects. It is or two reasons obious that the adjustment o the
conlicting interests can not only be achieed by market orces. Due to the unequal
bargaining power o the parties to the employment contract, the employer will
regularly preail. lurthermore common goals cannot be the object o priate
bargaining but hae to be respected at all costs.

8
II6 De1elo8*ent an5 '-&&ent state of e&*an la/ on /o&:e&
5ata 8&(1a'.
In regard to worker data priacy German law proides traditionally a two-
channel-approach:` 1he older channel ollows rom the so called General right to
personality` ,~ Allgemeines Personlichkeitsrecht, and is deeloped by case law.
1he newer one is based on the lederal Data Protection Act. 1hese two channels
which proide a substantial leel o protection are completed by a more procedural
proision stemming rom worker participation.
1. lirst channel: General right to personality ,case law,
1he general right to personality is a product o case law. 1he German Ciil Code
,~ Brgerliches Gesetzbuch, o 1900 does not proide such a right. 1he German
legislator back then reused the creation o a general right to personality because it
estimated that it will not be possible to gie such a right clear limits in particular as
regards damages in case o iolation. 1he ormer Reichsgericht airmed this
position in its case law.
8
It was not until 1954 when the lederal Ciil Court ,~
Bundesgerichtsho, acknowledged the general right to personality in a landmark
case as part o priate law, reerring to the German Constitution ,~ Grundgesetz,
rom 1949 with its undamental rights o protection o human dignity ,Art. 1 GG,
and to sel-ulilment ,Art. 2 I GG,.
9
A lot o urther decisions o the lederal Ciil
Court approed the general right to personality.
10
lence, this right has long been a
commonly accepted element o German priate law, although it was neer laid
down as such in statutory law.
11

1he acknowledgment o the general right to personality can be regarded as an
expression o the important role o undamental rights proided in the German
Constitution or all parts o priate law. In this respect the lederal Constitutional
Court ,~ Bundeserassungsgericht, held in an early landmark decision rom 1958
that undamental rights are not only releant as rights against state action.
12
Rather,
undamental rights represent objectie alues that inluence the whole legal order
and gie guidance or the interpretation o priate law.
13

In its early decisions the lederal Labour Court actually went one step urther
and applied undamental rights een directly against the employer, arguing that the

8
L. g. RG .11.1908 - I 638,0 - RGZ 69, 401, RG 12.5.1926 - I 28,25 - RGZ 113, 413.
9
BGl 25.5.1954 - I ZR 211,53 - BGlZ 13, 334.
10
Important older decisions: BGl 2.4.195 - VI ZR 9,56 - BGlZ 24, 2, BGl 14.2.1958 - I ZR
151,56 - BGlZ 26, 349.
11
See MnchKomm,Ri+ecker, Brgerliches Gesetzbuch, 5. Aul. ,2006,, Anhang zu 12 - Das
Allgemeine Personlichkeitsrecht, Palandt,Sprau, Brgerliches Gesetzbuch, 0. Aul. ,2011,, 823 Rn.
83 .
12
BVerG 15.1.1958 - 1 BR 400,51 - BVerGL , 198.
13
Legal theorists hae stated that the term alue` could be replaced by the term principle` in the
meaning o Dworkins concept o rights, see 9-e+0, 1heorie der Grundrechte ,1986,, p. 125 .
Rdiger Krause

88
power o the employer is comparable with the power o the state.
14
Although the
lederal Labour Court dismissed this approach in the 1980s,
15
the concrete results
do not dier ery much. According to the currently preailing approach
undamental rights oblige the state on the one hand to respect them directly and
on the other hand to protect them against iolation by priate actors.
16
1his applies
also in regard to the general right to personality. Although this right is part o
priate law, it must be interpreted in the light o the undamental right to
personality. 1his is important insoar as the constitutional duty to protect human
dignity and the right to sel-ulilment has a dynamic` character which prompts
the legislator and the courts to reine the legal order urther i priate actors cause
new dangers to the right to personality.
1

1he general right to personality is regarded as a source rom which derie
dierent characteristics deeloped by case law. Contrary to other goods like the
right to the own person or the right to property the right to personality does not
protect a clear deinable sphere. 1hus, it must be assessed in eery case, whether
the general right to personality is aected and, i so, whether it is iolated, which
has to be checked by means o balancing all interests at stake. I the right to
personality is inringed the aected person can claim or the elimination o the
impairment, and in case o a serious iolation also or damages.
18

lrom the ery beginning the lederal Labor Court gae protection to the
priate sphere o employees is-a-is the employer in general and in particular
concerning personal data although the right to personality as such and een more
the term data priacy was not mentioned until the 1980s. 1he \orks Constitution
Act rom 192 ,~ Betriebserassungsgesetz, supported this trend by proiding
expressly that the employer and the works council must protect and encourage the
ree deelopment o the personality o the employees , 5 Abs. 2 BetrVG,.
A much debated kind o cases concerns interiews with applicants. In all o
these cases the Court held that the employer is only entitled to ask or those acts
,or example preious oenses, i they are releant or the perormance o the job.
Other questions are qualiied as unjustiied intrusion into the priate sphere o the
applicant.
19
In other cases the Court held that data in a personnel record must be
deleted i they are wrong
20
and een i they are true but no longer releant or the

14
BAG 3.12.1954 - 1 AZR 150,54 - BAGL 1, 185, BAG 10.5.195 - 1 AZR 249,5 - BAGL 4,
24.
15
BAG 2.2.1985 - GS 1,84 - BAGL ,GS, 48, 122.
16
. Mangoldt,Klein,Starck, Kommentar zum Grundgesetz, Band 1, 6. Aul. ,2010,, Art. 1 Rn. 312
., comprehensie Ruffert, Vorrang der Verassung und Ligenstndigkeit des Priatrechts ,2001,, S.
141 .
1
C. MnchKomm,Ri+ecker, Brgerliches Gesetzbuch, 5. Aul. ,2006,, Anhang zu 12 - Das
Allgemeine Personlichkeitsrecht, Rn. 3.
18
C. MnchKomm,Ri+ecker, Brgerliches Gesetzbuch, 5. Aul. ,2006,, Anhang zu 12 - Das
Allgemeine Personlichkeitsrecht, Rn. 221 ., Palandt,Sprau, Brgerliches Gesetzbuch, 0. Aul.
,2011,, 823 Rn. 123 .
19
BAG 5.12.195 - 1 AZR 594,56 - BAGL 5, 159.
20
BAG 2.11.1985 - 5 AZR 101,84 - NZA 1986, 22.

89
employment relationship
21
. lurthermore the Court held that monitoring o
employees by means o technical deices aects their general right to personality
and is only allowed under certain requirements.
22
lence, the general right to
personality is a well established tool to limit the power o the employer to
superise employees and collect and store personal data.
2. Second channel: lederal Data Protection Act ,statutory law,
1he second channel is the lederal Data Protection Act which came into orce in
19.
23
1his Act is the result o the rising awareness o the dangers to priacy in
the 1960s and 190s by the ongoing technical deelopment in inormation
technology. Although the ocus was in the irst instance on the processing o
personal data by the state, the Act applies rom the ery beginning also to the
processing o personal data by priate bodies. 1he general concept o the lederal
Data Protection Act in its primary ersion was two-old: On the one hand the Act
coered only automated data processing or at least the using o data rom non
automated iling systems. In this respect the ield o application o the lederal
Data Protection Act was originally smaller than the general right to personality-
approach. On the other side the Act is stricter because it establishes i applicable a
general prohibition o processing personal data with the reseration o permission,
a legal technique oten used in administratie law but alien to priate law. 1he
central argument o the legislator was that the misuse o personal data can aect
the priate sphere o the citizens and thus it has to be protected against speciic
kinds o processing o personal data which are deemed to be exceptionally
dangerous.
24

Some legal scholars argue that this concept can be regarded rom a doctrinal
point o iew as a kind o risk management. \hile the general right to personality-
approach protects only against iolations o the priate sphere the lederal Data
Protection Act goes urther and inhibits already the creation o risks which can
iolate the general right to personality in uture.
25
1his is supported by the grounds
o the lederal Data Protection Act which stated or example that the transerring
o personal data to third parties endangers ,that means not iolates, the priate

21
BAG 13.4.1988 - 5 AZR 53,86 - NZA 1988, 654.
22
BAG 2.3.2003 - 2 AZR 51,02 - BAGL 105, 356 ~ NZA 2003, 1193, BAG 29.6.2004 - 1 ABR
21,03 - BAGL 111, 13 ~ NZA 2004, 128, BAG 26.8.2008 - 1 ABR 16,0 - BAGL 12, 26 ~
NZA 2008, 118.
23
1he term data protection` is misleading because it is not to protect data but persons against the
misuse o their personal data.
24
B1-Drucksache ,102 o 21,9,193, p. 14 .
25
%u--, Zweielsragen um die inormationelle Selbstbestimmung - Datenschutz als Datenaskese,
Neue Juristische \ochenschrit ,NJ\, 2006, 161-1624 ,at 1623,, Eh'ann, Zur Zweckbindung
priater Datennutzung, Recht der Datenerarbeitung ,RDV, 1988, 169-180 ,at 18,, Fran=en,
Arbeitnehmerdatenschutz - rechtspolitische Perspektien, Recht der Arbeit ,RdA, 2010, 25-263 ,at
258,, G&--ner, Daten- und Inormationsschutz im Arbeitserhltnis ,1982,, p. 6 .
Rdiger Krause

90
sphere.
26
Other scholars argue - in line with case law o the lederal Ciil Court
2
-
that the lederal Data Protection Act concretizes the general right to personality
and thus eery iolation o the Act must be regarded as a iolation o the general
right to personality.
28
At any rate, the lederal Labor Court uses the general right to
personality to ill the gaps o the lederal Data Protection Act.
29

lor more than thirty years the lederal Data Protection Act did not proide
particular regulations or worker priacy. 1hereore, only the general rules or data
processing by priate bodies apply. Although the lederal Labor Court reers to
this Act in some cases
30
it remains an exceptional part o employment law because
the legal style` o the Act resembles administratie law more than priate law.
In 2009, induced by the data protection scandals mentioned at the beginning, a
new proision deoted especially to worker data priacy was introduced into the
Act , 32 BDSG,.
31
In principle this proision approes only the state o case law
proiding that any processing o personal data o workers shall only be allowed i it
is necessary or job-related purposes. But the new proision expands the
application o the lederal Data Protection Act undamentally by declaring as
irreleant whether or not the employer carries out automated data processing or at
least uses personal data rom non automated iling systems. 1his means that the
primary purpose o the Act, namely to proide protection against particular
dangers, was sidelined. Now according to the lederal Data Protection Act eery
processing o worker personal data is prohibited unless it is allowed by the Act.
1hus, the general right to personality is no longer necessary as an instrument to ill
the gaps o the Act.

3. Constitutional law: Right to inormational sel-determination`
In 1983 the lederal Constitutional Court deeloped in a landmark case the so
called undamental right to inormational sel-determination` ,Grundrecht au

26
B1-Drucksache ,102 o 21,9,193, p. 18.
2
BGl ..1983 - III ZR 159,82 - NJ\ 1984, 436, BGl 22.5.1984 - VI ZR 105,82 - BGlZ 91,
233 ,at 239-240,.
28
Si'itis, Datenschutz: Von der legislatien Lntscheidung zur richterlichen Interpretation, Neue
Juristische \ochenschrit ,NJ\, 1981, 169-101 ,at 101,.
29
BAG 6.6.1984 - 5 AZR 286,81 - BAGL 46, 98 ~ NZA 1984, 321 ,employer has to wipe out a
questionnaire o an applicant who doesn`t succeed,, BAG 16.11.2010 - 9 AZR 53,09 - NZA 2011,
453 ,employee is entitled to inspect his personnel record ater the termination o the employment
relationship,.
30
C. BAG 2.5.1986 - 1 ABR 48,84 - BAGL 52, 88 ~ NZA 1986, 643, BAG 22.10.1986 - 5 AZR
660,85 - BAGL 53, 226 ~ NZA 198, 415, BAG 30.8.1995 - 1 ABR 4,95 - BAGL 80, 366 ~ NZA
1996, 218.
31
C. Erfurth, Der neue Arbeitnehmerdatenschutz im BDSG, Neue Juristische Online-Zeitschrit
,NJOZ, 2009, 2914-292, oussen, Die Neuassung des 32 BDSG - Neues zum
Arbeitnehmerdatenschutz, in: Jahrbuch des Arbeitsrechts ,JArbR, 4 ,2010,, 69-91, Sch'idt,
Arbeitnehmerdatenschutz gem| 32 BDSG - Line Neuregelung ,ast, ohne Vernderung der
Rechtslage, Recht der Datenerarbeitung ,RDV, 2009, 193-200, (hsing, Datenschutz im
Arbeitserhltnis, Neue Zeitschrit r Arbeitsrecht ,NZA, 2009, 865-80.

91
inormationelle Selbstbestimmung`,, which deries rom the undamental general
right to personality,
32
although some aspects o such a right were acknowledged in
precedents
33
. 1he Court held that modern orms o automated processing o
personal data create serious risks or the sel-determination because people can be
blocked rom unconstrained behaiour i they cannot know which inormation
about their own person is known in their social enironment. lence, eerybody
has the right to decide in principle on the disclosure and use o personal data. 1he
lederal Constitutional Court has airmed its opinion in a lot o decisions.
34
lrom
this point o iew there is no personal data which is irreleant at the outset.
1hereore the right to inormational sel-determination` tends to be a more rigid
approach than the right to priacy-approach in its traditional meaning o a right
to be let alone`.
35
In particular the right to inormational sel-determination`
protects not only against inringements o the right to personality but also against
endangering this right.
36

1he releance o that decision, which is oten called the Magna Charta` o
German data protection law,
3
or worker data priacy is contested. Some legal
scholars regard the decision as a great step orward and transer the right to
inormational sel-determination` immediately into the employment
relationship.
38
Other scholars stress that the lederal Constitutional Court has dealt
with a state action, namely a census, and point out the undamental dierence
between public law and priate law.
39
But in later cases the lederal Constitutional
Court didn`t hesitate to apply the right to inormational sel-determination` to
priate legal relations.
40
1he lederal Labor Court doesn`t worry too much about

32
BVerG 15.12.1983 - 1 BR 209, 269, 362, 420, 440, 484,83 - BVerGL 65, 1. See also BVerG
2.6.1991 - 2 BR 1493,89 - BVerGL 84, 239 ,at 280,: lundamental right o data protection
,Grundrecht au Datenschutz,`.
33
Beginning with BVerG 16..1969 - 1 BL 19,63 - BVerGL 2, 1.
34
C. BVerG 12.4.2005 - 2 BR 102,02 - BVerGL 113, 29 ,at 45 .,, BVerG 4.4.2006 - 1 BR
418,02 - BVerGL 115, 320 ,at 341 .,, BVerG 13.6.200 - 1 BR 1550,03, 235,04, 603,05 -
BVerGL 118, 168 ,at 183 .,. Current and comprehensie oeriew on the case law o the lederal
Constitutional Court on the right to inormational sel-determination` Fren=, Inormationelle
Selbstbestimmung im Spiegel des BVerG, Deutsches Verwaltungsblatt ,DVBl., 2009, 333-339,
critical o #adeur, Das Recht au inormationelle Selbstbestimmung: Line juristische
lehlkonstruktion, Die Oentliche Verwaltung ,DOV, 2009, 45-55, 2itschas, Inormationelle
Selbstbestimmung zwischen digitaler Okonomie und Internet, Datenschutz und Datensicherheit
,DuD,, 1998, 139-149 ,at 146-148,.
35
WarrenH%randeis, 1he Right to Priacy, 4 larard Law Reiew ,1890,, 193-220 ,at 195,.
36
C. BVerG 10.3.2008 - 1 BR 2388,03 - BVerGL 120, 351 ,at 360,, BVerG 11.3.2008 - 1 BR
204,05, 1254,0 - BVerGL 120, 38 ,at 39 .,.
3
L. g. Hoff'annBRie', Inormationelle Selbstbestimmung in der Inormationsgesellschat, Archi des
oentlichen Rechts ,AoR, 123 ,1998,, 513-540 ,at 515,.
38
Si'itis, Die inormationelle Selbstbestimmung - Grundbedingung einer erassungskonormen
Inormationsordnung, Neue Juristische \ochenschrit ,NJ\, 1984, 398-405 ,at 400-402,.
39
G&--ner, Die gesetzgeberische 1rennung des Datenschutzes r oentliche und priate Daten-
erarbeitung, Recht der Datenerarbeitung ,RDV, 1985, 3-16 ,at 12-13,. See also Giesen, Das
Grundrecht au Datenerarbeitung, Juristenzeitung ,JZ, 200, 918-92.
40
BVerG 11.6.1991 - 1 BR 239,90 - BVerGL 84, 192 ,at 194-195,, BVerG 23.10.2006 - 1 BR
202,02 - RDV 200, 20, BVerG 13.2.200 - 1 BR 421,05 - BVerGL 11, 202 ,at 228,, BVerG
11..200 - 1 BR 1025,0 - NJ\ 200, 30.
Rdiger Krause

92
doctrinal questions. In some cases the Court reerred expressly to the right to
inormational sel-determination`.
41
In other cases which are in act worker`s data
priacy cases too the Court neglected this aspect and reerred only to the general
right to personality but came to the same results.
42
Neertheless, the deelopment
o a particular undamental right to inormational sel-determination` has
contributed to the amendment and the sharpening o the lederal Data Protection
Act during the last twenty years. In particular this right has increased the awareness
or data priacy problems at the workplace and is uelling the eorts to elaborate
worker data priacy.
4. Protection o worker data priacy by means o worker participation
One particular kind o protection o worker priacy stems rom worker
participation law. According to the \orks Constitution Act o 192 the employer
is not allowed to introduce technical deices which are determined to monitor
employees unless he has achieed an agreement with the works council i existing
, 8 I Nr. 6 BetrVG,. I the parties ail to agree then a conciliation committee
decides , 8 II, 6 BetrVG,. 1his regulation additionally aims to saeguard the
general right to personality o the employees. 1he lederal Labour Court interprets
that proision in a broad sense and applies it to all cases o automated data
processing irrespectie o whether or not the employer has the intention to
monitor his sta. It is suicient that the technical deice is as such part o a system
which is able to monitor employees by processing personal data o workers
automatically.
43
lurthermore, according to another proision o the \orks
Constitution Act questionnaires require the consent o the works council , 94
BetrVG,. In both cases the collectie actors cannot deprie the employee o the
protection proided by the general right to personality. 1he leel o protection is
mandatory and does not stand at the disposal o employer and works council.
5. Impact o Luropean law
Luropean law has not had a deep impact on German law on worker data priacy
until now. In 1995 Data Protection Directie 95,46,LC was enacted. 1his
directie concerns the protection o indiiduals with regard to the processing o
personal data and on the ree moement o such data in general by state or priate
actors and does not address in particular employment law. lurthermore - and in
line with the original ersion o the lederal Data Protection Act
44
- it coers only

41
C. BAG 14.12.2004 - 1 ABR 34,03 - NJOZ 2005, 208.
42
C. BAG 29.6.2004 - 1 ABR 21,03 - BAGL 111, 13 ~ NZA 2004, 128.
43
BAG 9.9.195 - 1 ABR 20,4 - BAGL 2, 256. But there is no general exclusion o eidence
improperly obtained on grounds o iolation o worker participation rights, c. BAG 13.12.200 - 2
AZR 53,06 - NZA 2008, 1008.
44
See aboe II 2.

93
processing o personal data by automatic means or by non automated iling
systems.
45
1here hae been seeral announcements o the Luropean Commission
to propose a directie especially on the protection o employee personal data but
nothing has happened. Neertheless Directie 95,46,LC gies some guidelines
which hae to be respected at the leel o Member States` law although the
directie reers only to the approach that data protection seeks to protect the
priate sphere o persons while a right to inormational sel-determination` is not
mentioned.
46

1he most important aspect so ar is that according to the LCJ case law this
directie has the eect o ull harmonization, because it aims to establish a leel
playing ield or enterprises in Lurope.
4
1hat means that the leel o data
protection proided by the directie is strict in both directions. 1hereore national
law is prohibited rom setting either a lower or a higher leel o protection o
personal data.
48

Since the Lisbon 1reaty came into orce in December 2009, Art. 8 o the
Luropean Charter o lundamental Rights ,LClR, which guarantees the protection
o personal data must also be recognized because pursuant to Art. 51 the Charter is
applicable i the Member States implement Union law.
49
It is at this moment ar
rom clear whether Art. 8 LClR will aect the ull harmonization-approach.
In 2010 the Luropean Commission launched a new comprehensie approach
on data protection in the Luropean Union to adjust the existing legal ramework to
the current demands o inormational society.
50
1he Commission has announced it
would propose new legislation in 2011, but up to now nothing has happened.

45
See Art. 3 para. 1 Directie 95,46,LC.
46
C. Art. 1 para. 1 Directie 95,46,LC. 1his is in line with the Council o Lurope Conention or
the Protection o Indiiduals with regard to Automatic Processing o Personal Data o 28,1,1981
,c. Art. 1,.
4
LCJ 20.5.2003 - C-465,00, C-138,01 and C-139,01 - LCR 2003, I-4989 ~ RDV 2003, 231 -
Osterreichischer Rundunk ,para 39,, LCJ 6.11.2003 - C-101,01 - LCR 2003, I-1291 ~ RDV 2004,
16 - Lindqist ,para 96,, LCJ 16.12.2008 - C-524,06 - LCR 2008, I-905 ~ RDV 2009, 65 - luber
,para 51,.
48
%rhann, Mindeststandards oder Vollharmonisierung des Datenschutzes in der LG, Luropische
Zeitschrit r \irtschatsrecht ,LuZ\, 2009, 639-644, Forst, \ie iel Arbeitnehmerdatenschutz
erlaubt die LG-Datenschutzrichtlinie, Recht der Datenerarbeitung ,RDV,, 2010, 150-155.
49
See %rit=, Luropisierung des grundrechtlichen Datenschutzes, Luropische Grundrechte
Zeitschrit ,LuGRZ, 2009, 1-11. Another basis or data protection at Luropean leel is Art. 6 para. 2
LU ,~ 1reaty on Luropean Union, in conjunction with Art. 8 o the Luropean Conention or the
Protection o luman Rights and lundamental lreedoms which protects the right to priacy. Art. 8
o this Conention is also reerred in recital 10 o Directie 95,46,LC.
50
COM ,2010, 609 inal ,4,11,2010,.
Rdiger Krause

94
IV6 Ma(n as8e'ts of t+e b(ll
1. General issues
A. Policy considerations
1he policy o the drat is to oster legal certainty in an important ield o
employment law. 1he main purpose is o course to protect the interests o the
employees.
51
loweer, the drat also aims to take care or the interests o the
employer in particular in ensuring the demands o compliance and in preenting
corruption.
52
It is remarkable that the grounds also emphasize the creation o a
climate o mutual trust as a goal or at least a result o the Act.
53
1his may be
regarded as reerence to an economic analysis o data protection regulation and
notably to the concept that employees are more motiated to perorm their work
with due diligence and loyalty i they are respected as equal partners and not
treated with distrust. But the grounds reer in this respect neither to conceptual
nor to empirical analysis.
A recent inquiry o works councils gies some eidence that excessie
sureillance o workers is detrimental to the quality o their work perormance and
in the long run to the eiciency o the enterprise.
54
1his inquiry shows that there is
a certain correlation between data protection problems and other conlicts in the
enterprise like disregarding o participation rights, a stressed working atmosphere,
a poor economic perormance and een work stoppage.
55
But, as regards the
interplay between neglecting worker data protection and ineiciency o an
enterprise it is hard to say what is the chicken and what is the egg.
B. Structure and main rules and principles
In respect o the structure irst o all it must be noticed that the Act shall not be
separate but shall be included into the existing lederal Data Protection Act. 1his
might cause some uncertainties on the relation between the new speciic proisions
and the general proisions o the Act, although this problem should not be
oerestimated.
\hile the amendment in 2009 comprised only one proision the current drat
proides thirteen rules. 1hese new proisions establish a two-old system. lirst,
the Act makes a distinction between the dierent periods o the employment
relationship and dierentiates between the period prior to the conclusion o the

51
B1-Drucksache 1,4230 o 15,12,2011, p. 12.
52
B1-Drucksache 1,4230 o 15,12,2011, p. 12.
53
B1-Drucksache 1,4230 o 15,12,2011, p. 12.
54
\SI Report ,5,11,2010,, aailable at http:,,www.boeckler.de,pd,p_wsi_report_5_10.pd.
55
See also Gantt, An Aront to luman Dignity, Llectronic Mail Monitoring in the Priate Sector
\orkplace, 8 larard Journal o Law & 1echnology ,1995,, 345-425 ,at 419,.

95
employment contract and the period during the employment contract. Secondly,
the drat combines the two generally possible techniques or regulating a permit:
On the one hand the bill proides some general clauses.
56
On the other hand it
regulates in a detailed manner under which prerequisites the usage o special
instruments or monitoring workers shall be lawul, like ideo sureillance,
5

positioning systems
58
and biometric methods,
59
which are deemed to be
exceptionally dangerous to the right to priacy o employees.
60
1hus, the drat
combines more abstract and more concrete rules. 1he concrete rules shall
contribute to legal certainty in situations with a high risk o iolating the rights o
workers. 1he general rules shall apply to all other cases and thereore proide an
all-oer regulation notably or those methods o monitoring employees which are
not known today. 1he bill seeks to use the adantages o both manners o
techniques or regulating permits.
61
linally, the enisaged proisions contain a
large number o proisions ,no less than 18, on the documentation and disclosure
o the processing o personal data which are to contribute to a high leel o
transparency.
62

According to the undamental rule o the lederal Data Protection Act as
mentioned aboe eery kind o collecting, processing or using o personal data is
prohibited unless it is permitted by law or by consent o the concerned person.
63

1his general rule is concretized by some other rules o the drat. Prior to the
conclusion o the employment contract the employer may collect the name and the
address o the applicant or a job.
64
1his seems as a matter o course. But last all
the German Ministry or lamily Aairs and ie large companies ,inter alia
German Mail, German 1elekom, Procter and Gamble, started a pilot scheme with
entirely anonymous applications to aoid any discrimination in the hiring
procedure because there is some eidence that applicants with 1urkish names hae
less chances to get a job than applicants with German names. More important is
another point: 1he employer may collect only those other personal data which he
must know or assessing the ability o the applicant to perorm the intended job.
65

In other words, the personal data must be job-related.

56
32, 32b, 32c, 32d, 32e BDSG-L.
5
32 BDSG-L.
58
32g BDSG-L.
59
32 h BDSG-L.
60
Additionally the processing o personal data is regulated i these data are generated by using
communication systems or proessional purposes , 32i BDSG-L,. I communication systems are
permissibly used by the employee or priate goals then media law ,1elecommunication Act ~
1elekommunikationsgesetz ~ 1KG, applies.
61
1hus, it is partial i some scholars state that this mode o regulation cumulates the disadantages,
c. %" %uchner, Betriebliche Datenerarbeitung zwischen Datenschutz und Inormationsreiheit, in:
lestschrit r l. Buchner ,2009,, 153-162 ,at 156 .,, Fran=en, Arbeitnehmerdatenschutz -
rechtspolitische Perspektien, Recht der Arbeit ,RdA, 2010, 25-263 ,at 261,.
62
C. B1-Drucksache 1,4230 o 15,12,2011, p. 12 .
63
4 Abs. 1 BDSG.
64
32 Abs. 1 S. 1 DDSG-L.
65
32 Abs. 1 S. 2 and 3 BDSG-L.
Rdiger Krause

96
In respect o those grounds which are coered by antidiscrimination law ,race,
ethnic origin, sex, religion or belie, disability, sexual orientation,
66
the drat is
more rigid in order to preent circumention. Personal data may only be collected
i an unequal treatment based on these grounds exceptionally constitutes no
discrimination because the strict requirements o antidiscrimination law are met.
6

1hat means that the existence or non-existence o a characteristic related to one o
these grounds constitutes a genuine and determining occupational requirement,
proided that the objectie is legitimate and the requirement is proportionate. 1his
spilloer eect o antidiscrimination law on data priacy law is internationally well
known and or example part o U. S. law too.
68
1he drat will extend this test to
the criminal records o an applicant although there is no need or a spilloer eect
o antidiscrimination law. 1his would apparently modiy the case law at hand
because the lederal Labor Court has required up to now only a job-related reason
or the question on preious conictions
69
while antidiscrimination law is stricter.
1he grounds do not gie any explanation to this change o case law.
0

lurthermore the drat reers seeral times to the principle o proportionality as
a requirement o collecting, processing or using o personal data.
1
1his relects a
deelopment in case law but so ar it is not expressly proided in the lederal Data
Protection Act.
C. Lect o the consent o the employee concerned
As mentioned the lederal Data Protection Act permits in general the processing o
personal data, i the aected person declares her consent and some additional
requirements are met.
2
In particular this consent must be based on a ree decision.
1he drat will depart rom this rule and will gie eect to the consent only in a
ew cases which are expressly mentioned.
3
1he reason or this deiance is
obiously the general distrust o the possibility o ree decisions o applicants or
workers. Some scholars argue that this is not in line with Art. ,a, o Data
Protection Directie 95,46,LC, which proides the possibility o a consent,
because according to the ull harmonization-approach o the LCJ
4
Member States`
law may not derogate rom the protection leel o Union law.
5
On the other hand,

66
According to the German Lqual 1reatment Act ,~ Allgemeines Gleichbehandlungsgesetz, o 2006
as implementation o Directies 2000,43,LC, 2000,8,LC, 2002,3,LC and 2004,113,LC.
6
32 Abs. 2 BDSG-L.
68
C. Finkin, Priacy in Lmployment Law, 3rd Ld. ,2009,, p. 21 .
69
BAG 20.5.1999 - 2 AZR 320,98 - BAGL 91, 349 ~ NZA 1999, 95.
0
Critically Forst, Der Regierungsentwur zur Regelung des Beschtigtendatenschutzes, Neue
Zeitschrit r Arbeitsrecht ,NZA, 2010, 1043-1048 ,at 1045,.
1
32 Abs. , 32c Abs. 4, 32d Abs. 1 Nr. 3, Abs. 2 Nr. 1, 32e Abs. 3 S. 1 BDSG-L.
2
4 Abs. 1, 4a BDSG.
3
32l Abs. 1 BDSG-L.
4
See aboe III 5.
5
Forst, \ie iel Arbeitnehmerdatenschutz erlaubt die LG-Datenschutzrichtlinie, Recht der Daten-
erarbeitung ,RDV,, 2010, 150-155 ,at 152-153,, (hsing, Verbesserungsbedar beim
Beschtigtendatenschutz, Neue Zeitschrit r Arbeitsrecht ,NZA, 2011, 16-20 ,at 18,.

9
the proisions in the drat can be seen as an irreutable presumption that due to
the subordination o applicants and employees to the employer, unambiguous
consent also required by the directie will not exist within a hiring procedure or an
employment relationship.
2. Selected Problems
?@

A. Medical screening
Inter alia the bill addresses the problem o medical screening o applicants. It
proides that medical screenings will be only lawul i a particular health status o
the employee is an essential and determining occupational requirement.
lor
example the employee shall be sent into the tropics. lurthermore the consent o
the applicant is necessary. 1his consent is entirely oluntary. 1he employer may
not discriminate against the applicant because o his reluctance to undergo a
medical screening which is not necessary to assess the ability to perorm the job
although this is not expressly mentioned in the bill. Genetic screenings are
regulated by a particular Act which came into orce in lebruary 2010 and which
proides that such screenings are generally prohibited, with ery ew exceptions in
order to protect the worker himsel.
8

B. Video sureillance
One o the most disputed situations concerns the sureillance o employees with
ideo cameras.
9
At the moment dierent rules apply depending on the act
whether the obseration occurs in publicly accessible areas or non-publicly
accessible areas.
80

In a nutshell: As regards publicly accessible areas like shops, banks, restaurants
a special proision o the lederal Data protection Act applies.
81
According to this
proision the sureillance is permitted i there is a suicient purpose ,or example
preention o robbery or thet,. 1he sureillance must be appropriate and

6
Due to the limited extent o this paper many other important topics like whistleblowing,
compliance and enorcement are omitted.
32a Abs. 1 BDSG-L.

8
19 . Act on Genetic Screening o People ,~ Gendiagnostikgesetz,. More details by Fischinger,
Die arbeitsrechtlichen Regelungen des Gendiagnostikgesetzes, Neue Zeitschrit r Arbeitsrecht
,NZA, 2010, 65-0. Genenger, Begrenzung genetischer Untersuchungen und Analysen im
Arbeitsrecht, Arbeit und Recht ,AuR, 2009, 285-289, Wiese, Genetische Untersuchungen und
Analysen zum Arbeitsschutz und Rechtsolgen bei deren Verweigerung oder Durchhrung,
Betriebs-Berater ,BB, 2011, 313-31.
9
1he lederal Constitutional Court has decided that each ideo sureillance aects the right to
inormational sel-determination`, c. BVerG 23.2.200 - 1 BR 2368,06 - DVBl. 200, 49 ,at
500,.
80
Comprehensie oeriew Gri''HSchiefer, Videoberwachung am Arbeitsplatz, Recht der Arbeit
,RdA, 2009, 329-344.
81
6b BDSG.
Rdiger Krause

98
necessary to achiee this purpose and the interests o the employer on the one
hand and the employees on the other hand must be balanced. lurthermore the
employer must disclose that the area is under sureillance. In regard to non-
publicly accessible areas only case law applies. So ar the lederal Labor Court has
held that in general an obseration must be isible. But a hidden sureillance is
exceptionally lawul i it is the only instrument to inestigate criminal acts.
82

1he bill tackles the problem o ideo sureillance o non-publicly accessible
areas mainly with three rules:
83
lirst, an obseration is only permitted or a
particular purpose and i the principle o proportionality is regarded. 1his rule also
applies in the case o dummies because these deices can inluence the behaiour
o workers too. Secondly, the drat will abolish the exception o hidden
obseration with ideo cameras completely. In eery case the obseration must be
transparent to the employees. lence, the legislator will make it more diicult to
conict a worker haing committed a thet. 1hirdly, ideo sureillance shall be
completely prohibited in rooms or personal retreat like restrooms, locker rooms
and dormitories.
C. Social Networks
One o the most releant aspects o data priacy during the hiring procedure is the
question o which sources o inormation the employer may tap. In this way the
bill breaks new ground and considers the increasing role o the internet.
As a general rule the drat proides that the employer must collect the data
directly rom the employee.
84
1hus, the employee keeps the control o the data
low to the employer. 1his is in line with some conceptions o priacy in the U. S.
which try to speciy and oercome the traditional right to be let alone`-
approach.
85
I an inormation source is reely accessible ,like the internet, then the
employer can use it i he has gien a hint to the employee, or example in a job
adertisement, and the interests o the applicant in the exclusion o the data do not
preail.
86

Special attention is paid to social networks which are playing a growing role in
the selection o sta. According to an inquiry rom 2009 nearly 15 o all
companies with more than 1,000 employees are using social networks as a source
o inormation.
8
1he bill makes a distinction:
88
I a social network is determined to

82
BAG 2.3.2003 - 2 AZR 51,02 - BAGL 105, 356 ~ NZA 2003, 1193.
83
32 Abs. 1 and 2 BDSG-L.
84
32 Abs. 6 S. 1 BDSG-L.
85
C. Schoe'an ,Ld.,, Philosophical Dimensions o Priacy ,1984,, So-o/e, Conceptualizing Priacy, 90
Caliornia Law Reiew ,2002,, 108-1155.
86
32 Abs. 6 S. 2 BDSG-L.
8
Aailable at: http:,,www.bmel.de,SharedDocs,Downloads,Verbraucherschutz,Internetnutzung
VorauswahlPersonalentscheidungen.pd__blob~publicationlile ,18,4,2011,.
88
32 Abs. 6 S. 3 BDSG-L. See also Forst, Bewerberauswahl ber soziale Netzwerke im Internet,
Neue Zeitschrit r Arbeitsrecht ,NZA, 2010, 42-433, G&pfertHWi-ke, Recherchen des Arbeitgebers
in Sozialen Netzwerken nach dem geplanten Beschtigtendatenschutzgesetz, Neue Zeitschrit r

99
support the priate communication o the members like lacebook then the
employer may not make inestigations. loweer, i the social network unctions as
a platorm or proessional sel-adertisement ,like LinkedIn or Xing, the
employer may use it. 1he reason can be seen in the act that lacebook is oten
used by younger people who are not ully aware o the risks o the internet.
lurthermore social networks aim to establish non-proessional contacts between
people. It is dysunctional i an employer uses this kind o network or proessional
goals. I this collecting o inormation was lawul aderse reactions concerning the
use o these networks would be possible. Insoar as social networks sere
proessional goals then the employer is allowed to use this source.
1hus, the proisions concerning social networks can be conceptualized as
tools to insulate priate communication rom proessional relations. I, or
example, a pregnant woman who applies or a job cannot be sure that the
employer does not inestigate in lacebook then she will be reluctant to tell all her
riends that she is pregnant. lence the drat protects not only the priate sphere o
applicants in a spatial sense
89
but also societal communication as a alue that shall
not be aected by the logic o economy.
90

V6 Con'l-5(n) &e*a&:s
\orker data priacy problems are not unique to a particular country. 1hey arise in
each deeloped society. 1hus comparatie law can be useul because each legal
order has to answer the question whether or not it accepts the right to
inormational sel-determination` o employees and whether or not it qualiies
collecting and processing o personal data o workers as impairment o this right
which has to be justiied by legitimate purposes. 1his is in general the approach o
German law. Or to put it dierently: \orkers shall not check their rights at the
door o the actory or the oice.

Arbeitsrecht ,NZA, 2010, 1329-1333, 8Aerwetter, Soziale Netzwerke im ladenkreuz des Arbeitsrechts,
Neue Juristische \ochenschrit ,NJ\, 2001, 41-421.
89
Partial iew o priacy as some kind o social isolation Sofsk0, Priacy - A maniesto ,2008,.
90
Lmphasizing the role o inormational sel-determination` as an instrument to saeguard
communication Hoff'annBRie', Inormationelle Selbstbestimmung in der Inormationsgesellschat,
Archi des oentlichen Rechts ,AoR, 123 ,1998,, 513-540 ,at 519-524,.

SECTION $:
INTERNET LAW AND INTELLECTUAL PROPERTY

!o&ean Net(Aen EB-al(t. (n t+e S+a5o/ of Real
Na*e Ve&(f('at(on
1

ohn !" #eitner
I6 Int&o5-'t(on
In 200, the Republic o Korea ,Korea`, became the irst nation in the world
2
to
introduce a goernment-mandated system by which an indiidual wishing to
contribute content using popular internet portals must irst eriy his or her
identity using a Korean national identiication number. 1his real name eriication
system ,the RNVS` or the System`, has since been expanded to include a larger
number o websites. A case currently pending in the Korean Constitutional Court
,the Constitutional Court`,
3
has challenged the constitutional alidity o the
System,
4
but at the present time it continues to operate as a precondition to
content contribution in the most traicked channels o Korean internet lie, and as
a general tool or the oicial unmasking o netizen identity.
5

1
I wish to thank Choi Ko \a and \ang Li or their excellent research assistance. I also wish to thank
Chung lyungyo or helpully commenting on this article.
2
Korea is at the present time the only country with a mandatory nationwide internet user identity
eriication program. See John Leitner, 1dentif0ing the 2roA-e'; KoreaJs 1nitia- E+perience with !andator0
Rea- ,a'e 3erification on 1nternet 2orta-s, 9 J. KORLAN L. 83, 90 ,2009,.
3
1he Constitutional Court is the Korean high court or adjudication o constitutional law questions.
See Constitutional Court o Korea, 9Aout the Court, http:,,english.ccourt.go.kr.
4
2010 lun-Ma4. At the time this article was published, a decision in the case was expected shortly.
lor general inormation about the arguments adanced by the complainants and the respondent, see
Press Release, Public Relations Department o the Constitutional Court, July 8, 2010, a/ai-aA-e at
http:,,www.ccourt.go.kr,home,storybook,storybook.jspseq~30&eentNo~20104&sch_cod
e~B\UNRON&sch_sel~&sch_txt~&nScale~10&sch_category~&list_type~01,.
5
As explained infra, user identity is not publicly displayed on the internet portal, but the record o the
particular indiidual`s identity is retained and can be matched with the corresponding username in the
John M. Leitner

104
Supporters o the RNVS champion its potential to aid law enorcement in
policing online expression that may run aoul o a ariety o Korean criminal laws.
6

1he System also assists potential ciil litigation plaintis in bringing causes o
action against netizens or such actions as alleged deamation or contempt.

Opponents argue that the System is not only generally ineectie at punishing
oenders and deterring malign online behaiors, but also inringes on legally
protected rights o internet users.
8
1his article deelops key arguments on both
sides o the debate, with a special emphasis on the role o online actiities in the
adancement o indiidual rights. I argue in particular that the potential or
anonymity plays a critical role in presering the potency o cyberspace as a enue
or promoting the right to equality and to an autonomous priate lie.
1he article begins by sketching the background o the RNVS, including
rationales or its creation, technical architecture, and scope o applicability online.
Next, I describe the implementation o the System and its initial results, ollowed
by a discussion o the pending constitutional challenge. I proceed to consider the
general relationship between indiidual priacy` ,critically, or this article, priacy
o identity, and engagement with the online community, including a discussion o
major personal reedoms that may be impacted by the enorcement o the System.
I urther address the legal status o priacy in Korea and explore expanded notions
o the concept in light o issues related to the right o expression and the right o
equality. I conclude with a relection on the relationship between goernment
incursions into the basic mechanisms o cyberspace participation and the
experience o indiiduals in the society. 1hroughout this article, I seek to elaborate
upon the ollowing notion: an essentially ree cyber community meaningully
adances the social equality and personal autonomy o indiiduals. A superised
and e+ ante restricted cyberspace is not just a missed opportunity to promote
attractie policy, but an aront to indiidual rights.
9

uture. 1his is described in Korea as restrictie boninhwaginje`, or restrictie sel-identity
eriication`.
6
Releant criminalized expressions include certain political expressions, deamation, and contempt.
See Gukgaboanbeop |National Security Act[ ,Law No. 10 o 1948, a'ended A0 Law No. 5454 o 199,,
lyeongbeop |Criminal Act[ ,Act No. 293, Sep. 18, 1953, amended by Act No. 623, Jul. 29, 2005,,
arts. 30, 311. lor a detailed analysis o criminal laws in Korea related to expression, see John Leitner,
(o 2ost or ,ot to 2ost; Cri'ina- Sanctions for 8n-ine E+pression in the RepuA-ic of Korea, 1LMP. IN1`L &
COMP. L.J. ,orthcoming Spring 2011,.
Deamatory and contemptuous statements can gie rise to ciil suits or damages and other
remedies. See Minbeop |Ciil Act[ ,Act No. 9650, Aug. 9, 2009,, art. 64.
8
Current eorts by opponents o the System utilize a constitutional rights theory in a pending legal
challenge to the application o the RNVS, as opposed to a serious campaign to adocate or its
legislatie repeal on the basis o policy arguments. See supra note 4.
9
By right`, I reer to an entitlement o a party to act in a particular way. As I use the concept o a
right` in this discussion, the entitlement in question is a right by irtue o the act that it may be
legally exercised in a manner that is distinctly anti-majoritarian ,exercisable in a manner that a social
majority disapproes o, and anti-utilitarian ,exercisable in a manner that does not produce the
optimal outcome under a particular calculation o social welare or utility,. SeeE e"g"E Ronald Dworkin,
1AKING RIGl1S SLRIOUSL\ 268-28 ,19,.
Korean Netizen Lquality in the Shadow o Real Name Veriication

105
II6 4a':)&o-n5 of t+e RNVS
1C

1he RNVS was introduced into law through an amendment o the Inormation
and Communications Network Act, passed on January 26, 200.
11
Under the
terms o the statute, the Korean president is empowered to decree that websites
with more than 100,000 users per day must prompt their users to conirm their
identities using Korean national identiication numbers,
12
the identiying data is
presered and can be matched in the uture with the username associated with a
particular post.
13
Ater preiously establishing a less inclusie scope or the
RNVS,
14
the present enorcement decree engages the ull scope o the statutory
grant o authority and applies to all websites with more than 100,000 users per
day.
15
As a urther precaution against the existence and continuing public
aailability o legally suspect content, the Inormation and Communications Act
proides that internet portals are to respond to complaints o allegedly illegal
content
16
by ollowing certain takedown procedures.
1
Legally prescribed
procedures
18
enable goernment oicials, including prosecutors, oicials o the
Korean tax serice, and oicials o the Korean CIA to obtain inormation on the
identities o particular netizens rom internet portals.
1he stated justiications or the RNVS adance an objectie o improing the
ciility o cyber-etiquette and deterring malign comments, such as those iolating
the laws o deamation, contempt, and tortious inasions o priacy. Cyber-
deamation
19
is considered a widespread problem in Korea,
20
and amous instances

10
lor a more detailed explanation o the design and introduction o the RNVS, see Leitner, supra note
2, at 90-91.
11
Jeongbo tongsinmang iyong chokjin mit jeongbo boho deunge kwanhan beopryul |Act on
Promotion o Inormation and Communications Network Utilization and Inormation Protection[
,Act No. 8289, Jan. 26, 200,, art. 44-5 ,the Inormation and Communications Network Act`,.
12
1d" See a-so lyung-eun Kim, Do new 1nternet regu-ations curA free speechO, JOONGANG DAIL\, Aug. 13,
2008, a/ai-aA-e at http:,,joongangdaily.joins.com,article,iew.aspaid~28935. Indiiduals who do
not hae a Korean national identiication number are eectiely preented rom actiely engaging
with the online community through the internet portals subject to the RNVS. 1he question may be
posed: does one exist as a person in cyberspace without the capacity or interacting with the online
community
13
See Lnorcement Decree o the Inormation and Communications Network Act ,Presidential
Decree No. 2128, Jan. 28, 2009,, art. 30.
14
See Lnorcement Decree o the Inormation and Communications Network Act ,Presidential
Decree No. 20199, July 2, 200,, art. 22.
15
1his standard is consistent with the parameters authorized by the statute and speciied by executie
enorcement decree. See Lnorcement Decree, supra note 13.
16
1he scope o deamatory materials to be taken down is statutorily speciied. Inormation and
Communications Network Act, supra note 11, at art. 44-,1,, ,2,.
1
1he Inormation and Communications Network Act prescribes that internet portals delete
obiously oensie posts, while taking down posts o ambiguous legality or 30 days during a reiew
period. 1d" at art. 44-2,4,.
18
Jeonki tongsin saob boep |Llectronic 1elecommunications Business Act[ ,Act no. 10166, March
22, 2010,, art. 83.
19
Cyber-deamation is designated as a speciic crime under Korean law and is subject to greater
punishments than deamatory statements made oline. See Inormation and Communications
Network Act, supra note 11, at art. 0.
John M. Leitner

106
o malicious online comments hae catalyzed public opinion against the perceied
menace o objectionable online expression. In a particularly signiicant instance,
the suicide o beloed actress Jin-sil Choi
21
in October o 2008 led to speculation
that her suicidal eelings were shaped to a signiicant degree by online rumors,
22

and expansion o the RNVS was expedited ollowing the suicide.
23

lurther examination reeals an additional goernment motiation. Social
moements organized online hae in some cases resulted in notable ciic unrest. A
persistent rumor that American bee could inect consumers with mad cow disease
triggered growing social omentation, largely online, culminating in massie
outdoor demonstrations.
24
1he Korean goernment responded to the
embarrassing and disruptie episodes by seeking new instruments or the
preention o at least certain orms o social demonstration.
25
One such
instrument is the RNVS. 1he adance identiication o potential demonstration
organizers acilitates state intererence with or preention o public spectacles. In
deending the need or urther online identity-related measures, President Myung-
Bak Lee declared that Korea must counteract a phenomenon in which inaccurate,
alse inormation is disseminated, prompting social unrest that spreads like an
epidemic.`
26

III6 In(t(al Res-lts
Initial research has produced little eidence o a substantial reduction o legally
objectionable comments since the introduction o the RNVS. A general surey o
Korean netizen behaior has ound that, contrary to common assumption, the
rates at which internet user behaior deiates rom particular social norms are not
increased when netizens are acting anonymously, casting doubt upon the promise

20
1he Korean police reported 10,028 cases o online libel in 200, a substantial increase rom the
3,66 cases reported in 2004. Sang-hun Choe, Korean StarJs Suicide Reignites DeAate on WeA Regu-ation,
N.\. 1IMLS, Oct. 12, 2008, a/ai-aA-e at
http:,,www.nytimes.com,2008,10,13,technology,internet,13suicide.html.
21
In Korea, amily surnames are stated irst, ollowed by the indiidual`s gien name. In this article, I
adopt the western practice or the reader`s conenience, except in ootnote reerences, where I ollow
the conention used by the source publication.
22
See, e.g., Sang-hun Choe, WeA Ru'ors (ied to Korean 9ctressJs Suicide, N.\. 1imes, Oct. 2, 2008,
a/ai-aA-e at http:,,www.nytimes.com,2008,10,03,world,asia,03actress.htmlem, Choi Jin-sil,
Akpeuli Jukyeotda DongryoNetizen Kongbun |Negatie replies kill Choi[, SportsKhan, Oct. 2, 2008,
aailable at
http:,,sports.khan.co.kr,news,sk_index.htmlcat~iew&art_id~20081002222536&sec_id~562901.
23
See Lee 1ee Jong, Seoul Rushes Internet Bill, 1he Straits 1imes, Oct. 13, 2008, aailable at
http:,,www.straitstimes.com,Breaking2BNews,Asia,Story,S1IStory_28913.html, 1ong-lyung
Kim, More Limits Planned on Internet Anonymity, Korea 1imes, Oct. 3, 2008,
http:,,www.koreatimes.co.kr,www,news,biz,2008,10,123_32121.html.
24
See Jin-seo Cho, 2orta-s (urning 1nto Ru'or !i--sO, KORLA 1IMLS, May 14, 2008, a/ai-aA-e at
25
See Michael litzpatrick, South Korean goernment looks to rein in the Net, N.\. 1imes, Sept. 5,
2008, aailable at http:,,www.nytimes.com,2008,09,05,business,worldbusiness,05iht-sknet.html.
26
1d"

10
o enorcing notions o ciility through identity eriication.
2
A study concerned
with assessing the impact o the RNVS examined comments and replies on a
popular internet portal`s bulletin boards. 1he study ound that the number o total
comments decreased ater the introduction o the RNVS, but the proportional
share o deamatory comments did not decrease.
28

A Korea Communications Commission study
29
o the irst phase o the
introduction o the RNVS ound that there was a decrease in the rate o malign
internet posts
30
rom 15.8 to 13.9.
31
1his study proides the most aorable
results to date o the RNVS`s eectieness. 1he law has produced, at best,
marginally improed protection o priate reputation.
Initial Korean goernment analysis suggested that the RNVS has not had a
chilling eect` on Korean expression through the internet because its study
indicated that the number o internet posts on Korean internet portals has
remained consistent or increased since the System was introduced.
32
loweer, this
act does not establish a lack o chilling eect, as the introduction o the RNVS
may hae preented an increase in posting that may hae otherwise occurred.
33

lurthermore, statistics alone do not reeal the content o expression that is made
,or not made, through the internet, and it is possible that certain kinds o speech,
such as speech regarding sensitie but socially important subjects, has been
reduced.
34

2
\ong-suk lwang, 1nternet Kesipan Si-'0eongjee Daehan %ipanjeok Yeongu PCritica- 9pproach to the
1'p-e'entation of Rea-B,a'e s0ste' on %u--etin %oard of the 1nternetQ, 15 LONRONK\A SAl\L |PRLSS AND
SOC`\[ 9, 108 ,200,.
28
Jisuk \oo et al., 1nternet kaeshipan shi-'0eongjaeui h0okwae daehan si-jeung 0eongu; aehanjukAoninhwakinjae
sihenge ddaren kaeshipan nae keu-sseuki haengui 'it AiAangkwa 0okseu-ui A0eonhwareu- jungsi'euro P9n E'pirica-
9na-0sis of the Effect of Rea-Bna'e S0ste' on 1nternet %u--etin %oards; Focusing on How the Rea-Bna'e S0ste' and
.sersJ Characteristics 1nf-uence the .se of S-anderous Co''ents and Swear WordsQ, 20-21,
lengjeongnonchong Vol. 48,1,, Seoul Daehakgyo langukhengjeongyeonguso |Seoul National
Uniersity Korean Administration Institute[ ,2009,.
29
1his study ealuated the rate o malign reply, sought to gauge the chilling eect` o the law, or the
degree, i any, to which it discouraged use o the internet, and also attempted to measure the balloon
eect,` or the degree, i any, to which the law caused netizens to switch rom using large internet
portals subject to the RNVS to smaller ones not subject to the requirement.
Bangsongtongsinwiwonhoe |Korea Communications Commission[, aehanjeok Aoninhwakinjae
h0ogwaAunseokeu- wihan josa Aogoseo |9na-0sis of the Effect of #i'ited Rea- ,a'e 3erification[, October 200,
1-2. 1he study asserted that because the number o internet posts and the popularity o large internet
portals remained constant, no chilling eect or balloon eect was obserable. 1d" at 18-20.
30
1he term used to describe these messages in the study is Akseongdaetgeul,` translated here as
malign`. 1he study deines the term to include libel, sexual harassment, inasion o priacy, and
contempt. 1d" at 9.
31
1d.
32
1d" at 18.
33
1his possibility is supported by the act that, since the introduction o the RNVS, the number o
Korean internet users has signiicantly increased, while the number o posts on portals has been
stagnant. An alternatie explanation, howeer, may be that internet portals are becoming less aored
as sites o online expression, bypassed by some users in aor o alternaties like social networking
sites.
34
As I argue, infra, the RNVS impacts particular indiiduals and groups disproportionately, more
greatly deterring their expressie and associatie actiities and obstructing their opportunities or
more equal status in the society.
John M. Leitner

108
As a urther practical matter, the RNVS is susceptible to leakage` concerns.
Sites outside o the jurisdiction o the Korean goernment, such as sites based in
other nations, may proide an attractie alternatie to Korean users who are not
comortable with reealing their identity inormation online. A speciic illustration
o leakage has arisen within Korea`s own jurisdictional boundaries. 1he Google-
owned website \ou1ube permits registered users
35
to upload ideos that can then
be streamed by anyone who accesses the website. Registered users can also post
comments about a particular ideo, which are displayed below the ideo box on
the computer screen. Google maintains a Korea-based subsidiary that
administrates, amongst other properties, the Korean ersion o the \ou1ube site.
36

Google objected to the RNVS as compromising user anonymity in a manner
inconsistent with its ision o online reedom.
3
Google interpreted the law to
only apply to the Korean ersion o the \ou1ube site, and so it deactiated the
uploading and commenting eatures or indiiduals whose country preerence is set
to South Korea` in order to aoid a legal obligation to participate in the RNVS.
\hen \ou1ube is accessed rom a Korea-based IP address, the ront page
contains a message explaining the limited unctionality o the Korean page and
oering a one-click` conersion o the user`s preerence to the U.S.
\hile many instances o leakage` may be largely conjectural or at least
diicult to gauge, the case o \ou1ube proides a iid illustration o the practical
limitations o the RNVS. Migration to the use o Google products or a ariety o
online actiities, including blogging
38
and other methods o creating online
content, has become an increasingly popular method or indiiduals in Korea to
remain anonymous.
39
Gien the means aailable to a party who intends to deame
another online, including the use o someone else`s identiication number,
40
the
RNVS is particularly unlikely to preent the most premeditated and organized acts
o deamation.
41

35
\ou1ube requires users wishing to post content to proide certain personal inormation, but the
only eriied inormation is access to the email address that is proided.
36
See kr.youtube.com.
3
Google`s protection o user anonymity is not absolute. Google`s priacy policy states that it will
share inormation with third parties when |w[e hae a good aith belie that access, use, preseration
or disclosure o such inormation is reasonably necessary to ,a, satisy any applicable law, regulation,
legal process or enorceable goernmental request.` Google Priacy Center: Priacy Policy,
http:,,www.google.com,priacypolicy.html.
38
Google proides its Blogger` serice ,www.blogger.com, to Korean users. So ar, it has not
qualiied or inclusion as an internet portal within the scope o the RNVS due to an insuicient
number o daily users, but the site could be the source o uture conlict with the Korean goernment
i its popularity continues to grow.
39
See 1ong-hyun Kim, Goog-e 9/oids Regu-ationsE Korean 2orta-s ,ot so #uck0, KORLA 1IMLS, Apr. 2,
2009, a/ai-aA-e at
http:,,www.koreatimes.co.kr,www,news,tech,tech_iew.aspnewsIdx~43939&categoryCode~129
40
A google.com search conducted by the Korean Inormation Security Agency produced well oer a
hundred thousand Korean ID numbers that could be obtained or ree online. Goog-e E+posing
(housands of Korean 1D ,u'Aers, ClOSUNILBO, Sept. 22, 2008, a/ai-aA-e at
http:,,english.chosun.com,w21data,html,news,200809,200809220010.html.
41
Proocatie research already exists suggesting that instances o online deamation hae not been
curbed by the introduction o the RNVS. See \oo et al., supra note 28, at 20-21.

109
IV6 Const(t-t(onal Co-&t C+allen)e
On January 25, 2010, three Korean citizens iled a constitutional complaint arguing
that the RNVS iolates seeral o their constitutional rights. 1he complainants
asserted that they desired to post expressions on a number o Korea-based
websites, including ohmynews.com and ytn.co.kr, but were unable to do so
because they were unwilling to comply with the RNVS. Oral arguments in the case
were heard by the Constitutional Court on July 8, 2010,
42
a decision is expected
imminently.
43

1he complainants argued
44
that their reedom o expression was iolated by
the RNVS, in particular their reedom to express anonymously.
45
1hey argued
urther that the law eectiely imposes prior restraint, a iolation o the
constitutional prohibition on censorship.
46
1he complainants claimed that the
RNVS iolates the least restrictie means principle
4
and improperly underalues
indiidual priate interest against the public interest.
48
As an alternatie theory, the
complainants asserted that the high risk o inormation leakage poses a threat to
priacy grae enough to threaten the constitutional right to priacy, deined in
Constitutional Court precedent as the right to reedom o a priate lie and the
reedom to control one`s own personal inormation.
49
linally, a theory o equality
was presented, alleging unequal treatment between those seeking to express
themseles on the internet and those utilizing any other medium, where no
equialent name eriication requirement operates.
1he respondent
50
argued that the RNVS requirement is an appropriate means
o achieing justiied goernment purposes. 1he purposes adanced included
promoting a more responsible and respectul online space or public expression
and stimulating more use o online bulletin boards by lessening the apprehension

42
See supra note 4.
43
1he decision in this case had not been made at the time this article was published, and pursuant to
Constitutional Court practice, the date o decision is not publicly announced in adance.
44
See id.
45
Under the Constitution o Korea ,the Constitution`,, citizens hae a right to reedom o speech,
but such speech shall not iolate the honor or rights o other persons or undermine public morals or
social ethics. leonbeop |Constitution[, art. 21 ,S. Korea,, trans-ated at
http:,,korea.assembly.go.kr,board,down.jspboarditemid~1000000155&dirname~,eng_data,1000
000155L1.pd.
46
1d" at art. 21,2,.
4
lor a discussion o the special status ,to utilize non-Korean parlance, heightened scrutiny`, that
reedom o expression ormally receies under Korean law, see 89lun-Ma165, 3 KCCR 518, 534
,Sept. 16, 1991,.
48
1he rights o citizens may be restricted by the goernment when such restrictions are necessary or
national security, maintenance o law and order, or or public welare. 1he Constitution asserts that
such restrictions cannot iolate the essential aspect` o the right in question. Constitution, supra
note 45, at art. 3.
49
See 99lun-Ba92, 2000lun-Ba39, 2000lun-Ma16 168 199 205 280 ,consolidated,, 13,2,
KCCR 14, 203 ,Aug. 30, 2001,.
50
In this dispute, the Korean Broadcasting Commission, a goernment agency within the Korea
Communications Commission, deended the law as the respondent.
John M. Leitner

110
o indiiduals that they will be treated in an illegal manner by other netizens.
51
1he
respondent asserted that, because the identity o the posting indiidual is not
displayed in public iew on the internet portal, her interest in anonymous
expression is not iolated, and the policy does not iolate either a least restrictie
means` or balance o priate and public interest` test.
52
1he deense argued that
the ormal requirements or legally proscribed prior censorship were not met in
this case. 1he act that posting is oluntary was argued by the deense to negate
the claim o a priacy right iolation.
1he decision o the Constitutional Court is expected shortly. 1he outcome o
the complaint can hardly be predicted, but in the ollowing discussion I oer
briely my own assessment o the merits o the case.
As a matter o legal principle, the plaintis should succeed on their claim o
reedom o expression. 1he RNVS requirement imposes an airmatie obligation
and, in many cases, an actual and chilling` burden on essentially all the members
o Korean cyber-society, many o whom are also rights-holding citizens o Korea.
In the ace o this limitation to indiidual rights, the state oers only general
notions o a state interest in an attractie and widely used cyberspace. On the
ormer consideration, o desirable internet culture, the state adances a speculatie
ision o promoting, i tenuously, certain characteristics o what the goernment
deines as preerred internet etiquette. I this goernment interest is accepted as a
legitimate basis or limiting indiidual rights, it is a broad and dangerous one. A
urther question o the nature o indiidual rights is also raised. Is the right` in
question that is to be limited a legal entitlement at all, i a roughly sketched notion
o attractie social behaior in a particular public orum is a legitimate basis or
limiting the right As or the latter consideration, o promoting the widespread use
o the internet as a orum or expression, the act that the RNVS has arguably
reduced the total quantity o online expression that would otherwise hae occurred
indicates that the law is inappropriate or adancing this public interest.
I argue below that the RNVS also iolates meaningul indiidual rights to
priacy and equality. 1he arguments o the complainants did not capture the ull
scope and applications o these two legal theories,
53
but a nuanced and

51
1he respondent analogized the case to a recent precedent, 2008lun-Ma324, 2009lun-Ba31
,consolidated,, 161 KCCG 595 ,leb. 25, 2010,, in which complainants challenged a law that requires
internet news sites` to eriy the names o indiiduals posting politically releant content during a
seeral week period preceding elections. 1he sites are required to delete posts where the author has
not eriied her real name. 1he Constitutional Court, ater considering claims that the law was oid
or agueness, constituted prior censorship, iolated the least restrictie means principle, and
compromised priacy, upheld the law.
52
Balancing interests under Korean law relects a distinctly utilitarian character. According to the
Korean Supreme Court, \hen the protection o a person`s reputation and the reedom o
expression are in conlict, how the two rights should be mediated depends on the comparison o
arious social interests by comparing the beneit o ree expression and the alues achieed through
the protection o personal rights.` 85Da-Kha29, Gong 1988.11.15. ,836,, 1393 ,October 11, 1988,.
53
1he complainants` equality theory is particularly ormalistic and subject to a powerul rebuttal. 1he
state may contend that, in the absence o the RNVS, online speakers conceal themseles behind a eil
o anonymity that is generally not aailable to oline speakers, where identity concealment is oten

111
contextualized consideration o equality and priacy leads to the conclusion that
the RNVS cannot be tolerated in a constitutional democracy that is protectie o
these indiidual rights. I begin with a general discussion o priacy, an oten
nebulous concept in many legal systems that can and should be seen to operate
actiely to promote the human dignity` that the Constitution purports to protect
absolutely.
54
I then synthesize the autonomy` notion o priacy with the right o
equality. Understood to go beyond acial neutrality and to seek deeper airness on
the leel o social status, the indiidual right o equality orms a powerul basis or
a social duty to deend the equal rights potentials o a ree and open cyberspace.
55

V6 Refle't(on on P&(1a'. an5 t+e R()+ts of DNet(AensE
1he concept o priacy` is by its nature a arying and indeinite one, perpetually a
moing target in philosophical and legal analysis. 1o clariy the meaning o this
concept as it pertains to the System, seeral general ariables should be isolated
and discussed.
56
lirstly, is a iolation o priacy` conditioned on particular kinds
o airmatie actions external to the indiidual, such as the acquisition,
dissemination, and compilation o priate data by third parties Or, alternatiely,
should priacy be understood rom the subjectie perspectie o the indiidual,
such as a person`s perception o whether her or she exists in a priate` sphere
with certain priacy-related characteristics, such as reedom rom obseration or
intererence, reedom o choice and action, or a sense o well-being 1hese two
perspecties are ineitably closely interrelated. lor instance, a lapse o data
priacy` ,such as non-consensual dissemination o a person`s health inormation,
o which the subject is aware might in many cases hae as one result an impact on
the aected indiidual`s personal iew o his or her priacy. loweer, in principle,
data priacy is compromised independently o the indiidual`s knowledge or
particular concern. In the latter sense o priacy as personal perception-based,
priacy may be compromised in a ariety o settings, which may not be as clearly
speciiable or linked to identiied external triggers as cases o wrongul data
dissemination.

diicult or simply not possible. A widely accessible expressie orum with almost uniersal
anonymity ,barring e+ post identiication, is a unique result o the rise o cyberspace public discourse,
and a particularized goernment policy may be either a rational distinction in treatment o online and
oline speakers or, more dramatically, an eectie rectiication o a preiously unequal`
arrangement.
54
Under the Constitution, All citizens shall be assured o human dignity and worth.`
Constitution, supra note 45, at art. 10.
55
\hile rights are generally discussed in terms o prohibition o goernment actions that oend
those rights by obstructing the legal exercise o an indiidual entitlement, it may be argued that the
state has a duty to act airmatiely to promote a state o greater indication o indiidual rights. 1his
possibility is reerenced in Lquality,Autonomy Approach`, infra, although the approach presented
in this article is not conditioned upon acceptance o a theory o positie rights.
56
I proide a synopsis o existing Korean priacy law, infra, but my objectie here is to discuss
general parameters or thinking about priacy.
John M. Leitner

112
As a second consideration, assume that priacy is understood at least in part
rom the standpoint o the indiidual`s personal conception and experience. \hat
standard or personal priacy might be adopted One deinition o priacy, or an
element o the deinition, is priacy as concealment o certain aspects o lie rom
uninited members o the public.
5
1his notion is oten associated with priacy as
rooted in place`, such as the priacy right identiied in certain American Supreme
Court precedents as emanating` rom the Bill o Rights.
58
1he idea, or instance,
that a personal home is sacred, and that outside intrusion, including by the
goernment, must be preented or minimized,
59
is the archetypical notion o
priacy as place-based and concealment-based. loweer, priacy can potentially
be ar more complicated. \hy are certain personal decisions, such as the decision
o a woman to hae an abortion procedure
60
or the decision o a person to engage
in a homosexual relationship,
61
categorized in American law as relating to a
priacy right`
62
In such cases, the analysis does not depend on whether the
actiities related to these decisions can be concealed in a priate place, but rather
whether the decision itsel, een i obserable and potentially publicly known, is by
its nature a priate` one that a digniied person must be ree to make or hersel.
63

1his notion o priacy is not based primarily on a particular priate place,
64
but
rather on aspects o human lie that must be controlled by the indiidual through a
priate process independent o goernment proscription or coercion. Such a
priacy right is oten constructed out o the notion o liberty`,
65
as I suggest infra,

5
1his may seem similar to the preious discussion o inormation obtained and disseminated by
third parties. lere, howeer, the key is not the acts external to the indiidual, but rather the eeling
and perception o reedom rom obseration.
58
See Griswold . Connecticut, 381 U.S. 49, 484 ,1965,. See a-so Poe . Ullman, 36 U.S. 49, 516-
522 ,1961, ,Justice larlan, dissenting,.
59
Co'pare Constitution, supra note 45, at art. 16 ,All citizens shall be ree rom intrusion into their
place o residence`, with U.S. Const. amend. IV ,1he right o the people to be secure in their
persons, houses, papers, and eects, against unreasonable searches and seizures, shall not be
iolated.`,.
60
See Roe . \ade, 410 U.S. 113 ,193,, Planned Parenthood o Southeastern Pennsylania . Casey,
505 U.S. 833 ,1992,.
61
See Lawrence 1exas, 539 U.S. 558 ,2003,.
62
I illustrate notions o priacy using examples rom American law to illustrate, within an inter-
jurisdictional context, the complexities o priacy` as an identiied and substantie legal right.
63
1he assertion o this constitutional right to priacy has long been controersial. lor just one
amous illustration, see John lart Lly, (he Wages of Cr0ing Wo-fE 82 \ALL L. J. 920 ,193,.
64
loweer, in Lawrence, the Supreme Court did reerence the notion o the home as the most
priate o places`. Lawrence, supra note 61, at 56.
65
In American law, it is asserted in precedent that the due process clause o the 14
th
Amendment
protects liberty that encompasses personal control oer certain intimate decisions. See Casey, supra
note 60, at 851,stating Our law aords constitutional protection to personal decisions relating to
marriage, procreation, contraception, amily relationships, child rearing, and education. 1hese
matters, inoling the most intimate and personal choices a person may make in a lietime, choices
central to personal dignity and autonomy, are central to the liberty protected by the lourteenth
Amendment. At the heart o liberty is the right to deine one`s own concept o existence, o
meaning, o the unierse, and o the mystery o human lie. Belies about these matters could not
deine the attributes o personhood were they ormed under compulsion o the State.`,.

113
the notion o autonomy`, as related to the broader principle o equality, is more
useul in clariying the nature o this priacy right.
In light o the social alue o ree expression, the concept o priacy` in the
online space becomes more complicated. Proponents o the RNVS correctly
assert that indiiduals hae an interest in the protection o their priate personal
rights`,
66
such as reputation and reedom rom deamation.
6
loweer,
indiiduals also hae an interest in priacy in a dierent sense, that is, in
maintaining an anonymous proile online or the purposes o utilizing legitimate
expressie and associatie opportunities while being insulated rom the possibility
o stigma or suppression.
68
\hile some hae questioned the alue o anonymous
expression, examples o the alue o anonymity include the sharing o sensitie
inormation regarding personal health issues, matters o personal and sexual
identity,
69
and politically controersial topics.
1he Constitution explicitly protects the reputation o Korean indiiduals, but
reputation concerns weigh on both sides o this debate. 1he right o reputation
surely contains the interest o the indiidual to be ree rom deamation, contempt,
or other malign` statements impugning her character. On the other hand, this
reputation right should also be understood to include personal inluence oer the
inputs o reputation. Integral to that inluence is power oer the public identity
that the indiidual creates in both the oline and online worlds.
Some may ind the assertion that the RNVS iolates an indiidual right to
priacy to be a specious one. 1aking the notion o priacy as data dissemination-
based, where the right or interest in question is iolated when data is shared
impermissibly, the RNVS appears to present no immediate iolation o a priacy
right`.
0
Priacy as personal and place-based may also seem little-compromised by
the RNVS: does one hae an expectation o priacy in cyberspace, and does the
reelation o identity represent a iolation o any priacy right that may exist

66
SeeE e"g"E \an Choung, C0Aerpokr0eokui 2ihaesi-taewa DaeeungAangan |9 #ega- Stud0 of C0Aer 3io-ence[, 13
PIlALJAlAK\LONGU |KORLAN J. Ol VIC1IMOLOG\[ 329, 34-48 ,2005,. Proessor Choung
describes in-gyeok kwon`, translated here as personal rights`, as requiring the protection proided
by such policies as the RNVS.
6
1his is made explicitly clear in the text o the Constitution, which states: Neither speech nor the
press shall iolate the honor or rights o other persons nor undermine public morals or social ethics.`
Constitution, supra note 45, at art. 21,4,.
68
As stated by the United States Supreme Court, Persecuted groups and sects rom time to time
throughout history hae been able to criticize the oppressie practices and laws either anonymously
or not at all... It is plain that anonymity has sometimes been assumed or the most constructie
purposes.` 1alley . Caliornia, 362 U.S. 60, 65-66 ,1960,.
69
See Jisuk \oo and Jae-lyup Lee, 1he Limitations o Inormation Priacy` in the Network
Lnironment, U. PI11. J. 1LCl. L. & POL`\ 2, 28-29 ,2006, ,citing Daid J. Phillips, Negotiating the
Digital Closet: Online Pseudonyms and the Politics o Sexual Identity, 5 INlO. COMM. & SOC`\ 406
,2002,,.
0
As a practical matter, the security o gathered identity inormation has been questioned, proiding
an opportunity or complainants to challenge the RNVS on a data dissemination theory. SeeE e"g"E Kim
Jung \an, #eaked 2ersona- 1nfor'ation 2re/a-entE Rea- ,a'e 3erification Shou-d Ae Repea-ed |KaeinjungAo
Yoochu- Wonh0ung 1nternet Shi-'0ungjae 2aejidue0a[, Boan News, September , 2010, a/ai-aA-e at
http:,,www.boannews.com,media,iew.aspidx~2266&kind~1.
John M. Leitner

114
online loweer, i priacy is understood to encompass personal decisions and
independent lie behaiors, the RNVS becomes more troubling as a matter o legal
principle.
1. Priacy and the Nature o Interactions
Online actiities potentially and actually ill substantial roles in personal decision-
making and the interaction between indiiduals and arious communities within
society. 1he interactie and geographic barrier-deiant nature o the internet
acilitates the deelopment o intimate and essential lie experiences in cyberspace.
1he aailability o online anonymity, and the related potential or construction and
reconstruction o personal identity, acilitates meaningul additional opportunities
or sel-realization online. It may be tempting to ocus on negatie applications o
online anonymity, but I would like to suggest two categories o cases o
indiidually ital ,and socially aluable, social actiities that are centrally or
exclusiely conducted on the internet and are substantially bolstered by the
aailability o anonymity.
A. Actiities Signiicantly lacilitated by the Online Medium
Various actiities that are possible and occur on some leel in traditional physical
orums may be signiicantly acilitated and expanded by the aailability o online
interaction. lor example, participation in organizations or less ormal social
settings inoling the exchange o sensitie and personal inormation, which may
reeal priate details about an indiidual, may be much enhanced by online
collaboration. Indiiduals seeking to discuss health conditions, religious and other
belie-based ainities, or controersial ,i legal, liestyle choices, may ind ar
greater opportunities or meaningul interaction in cyberspace.
B. Actiities Only Possible Online
In some o the aboe cases, the actiity in question may only be likely to occur
online, due to physical-world obstacles. loweer, it is at least theoretically possible
or the actiity to happen on some scale in the physical world, and undamentally
these are endeaors o the sort that may happen and hae happened in oline lie.
Distinguishable are those orms o interaction and engagement that exist and are
understood and deined in terms o the online space. 1he essence, and not just
orm and enue, o the actiity is deined by its online character. 1he most
dramatic illustration may be the idea o a second lie`, in which an indiidual
constructs an online identity that may or may not closely resemble the indiidual`s
identity in the physical world, in the orm o an online aatar.

115
My contention is not that any particular personal liestyle choice related to
public identity is necessarily and unambiguously good.
1
Rather, my contention is
that the discretion to space-shit` actiities online or, more dramatically, to create
and cultiate cyber-personae and engage in other noel online pursuits, is central
to a ree and independent lie in a modern, deeloped society. Beginning with the
underlying principle that indiiduals are ree to pursue an independent lie and that
priacy contains the reedom to make intimate liestyle and persona-deelopment
choices, the contextualized application o this principle in a technologically
adanced society must include a robust conception o online reedom.
In cyberspace, the threshold question o existence is, does an indiidual hae
|high-speed[ internet access In a society employing a mandatory system o real
name eriication, the urther question must be posed: does an indiidual hae the
means to directly contribute to and interact with the online community 1he
common characteristic o the internet actiities described aboe is the actiely
participatory nature o the indiidual`s engagement online. 1o limit a particular
indiidual to the status o passie obserer and recipient o online culture, and not
a semiotic collaborator, is arguably to deny that person existence in cyberspace`.
At a minimum, the indiidual has a prooundly unequal and depried status in
cyberspace due to lack o capacity to engage. 1he RNVS depries some indiiduals
o any opportunity to participate in certain channels online, and poses to all others
the choice between unmasking their identity to the goernment or else not
participating in those channels. All indiiduals ace potential limitation o their
reedom or deelopment o online identities, and the impact is greatest or those
indiiduals who are already marginalized and stigmatized in the oline world ,and
who would most directly beneit rom the liberating status o online anonymity,.
2. Priacy and Lmpowering Personal lreedoms in Korea
Priacy` may be identiied as an independent and suicient basis or a rights-
based claim under Korean law, but the meaning and substance o priacy`
concerns as a rights claim are imbued by other legal principles. In Korea, priacy
is interpreted to contain three rights-related components: the protection o secret
priate inormation rom being reealed ,priate acts and acts likely to cause
social misunderstandings,, the protection o reedom o priacy ,a zone o priacy
rom which the outside world can be excluded,, and a right to control the manner
in which personal inormation is disseminated.
2
Construed this way, Korean

1
A single answer to the question o to what ends discretion will be channeled is neer possible.
Some online personae, as cultiated and adanced online, are bullies or thiees. 1his obseration
does not seem, on its ace, to distinguish the experience o cyberspace rom the experience o oline
communities in the physical world.
2
See supra note 49. 1he irst two conceptions o priacy are understood as passie` ,where the
indiidual can exercise the reedom to presere the status quo o priate inormation and places,,
while the third is described as actie` ,where the indiidual can control or inluence particular
channels and manners o inormation distribution that are being engaged,.
John M. Leitner

116
priacy is rooted in priacy o place and secrecy o inormation. Both notions
arguably lack a clear connection to the priacy o interacting in cyberspace in a
manner that inoles the utilization o public and shared space and the potential
oluntary reelation o at least some orms o personal inormation. Understood
in this light, the constitutional right to priacy as place-protectie proides little or
no legal succor to those objecting to the RNVS, the data-dissemination dimension
o the priacy right may be implicated, but the arguable remedy or the threat o
data security breaches is ex post litigation to address liability and damages, not an
ex ante inding o a constitutional iolation. Might other rights-based objections
be aailable I oer as a speciic and relatiely straightorward example concerns
related to reedom o expression, beore briely sketching a broader equality
ramework or saeguarding online reedoms, including netizen anonymity.
A. Lxpression
1he specter o suppression o expression exists in all societies at all times, leading
to the insight that anonymous expression may play a ital role in sustaining and
nourishing social discourse when application o state coercion might otherwise be
stiling. 1his is particularly pressing, and may be most probable to occur, in
matters o political and social conlict-related expression. A recent case in Korea
proides a poignant example. Dae-sung Park was a widely read blogger on
inancial issues who posted his writings under the internet alias Minera`.
3
Mr.
Park, whose Minera` identity gained ame ater Park pseudonymously predicted
the demise o the bank Lehman Brothers, was arrested on January , 2009.
4
le
was accused o posting online speculation regarding Korean monetary policy.
5

1he prosecution alleged that these speculations were alse and that Mr. Park spread
the rumor with the intent to damage public interest, in iolation o the E-ectronic
Co''unication Funda'enta- #aw.
6
le was acquitted by the Seoul Central District
Court on April 20, 2009.
1he legal proision in question was recently declared

unconstitutional by the Constitutional Court.
8
1he Court concluded that the

3
Minera is the goddess o wisdom in Roman mythology ,known in Greek mythology as Athena,.
4
See Christian Olier, Financia- %-ogger 9rrested in South Korea, lIN. 1IMLS, Jan. 8, 2009, a/ai-aA-e at
http:,,www.t.com,cms,s,0,092a99ca-ddab-11dd-8dc-0000b0658.htmlnclick_check~1, see
a-so Jane lan, Foreigners 2u==-ed o/er 2arkJs 9rrest, KORLA 1IMLS, Jan. 11, 2009, a/ai-aA-e at
5
See Ju-min Park and John M. Glionna, Case of 1nternet Econo'ic 2undit !iner/a Roi-s South Korea, L.A.
1IMLS, Jan. 16, 2009, a/ai-aA-e at http:,,articles.latimes.com,2009,jan,16,world,g-korea-minera16.
6
Jeonki tongsin kibonbeop |Llectronic Communication lundamental Act[, Act No. 980, art. 4,1,
states:
A person spreading a alse rumor maliciously intending to damage the public interest by using an
electronic machine can be sentenced to imprisonment or under ie years or gien a ine o under
50,000,000 won.
S" Korean Court Finds R!iner/aS ,ot Gui-t0, KORLA 1IMLS, Apr. 20, 2009, a/ai-aA-e at
http:,,www.koreatimes.co.kr,www,news,nation,2009,04,113_4346.html.
8
2008lun-Ba15, 2009lun-Ba88 ,consolidated, ,Dec. 28, 2010,, a/ai-aA-e at http:,,www.
ccourt.go.kr,home,iew2,xml_content_iew02.jspseq~10&cname~&eentNo~20081
5&publag~2&eentnum~2549&sch_keyword~&cid~01010002.

11
intent element o the crime, which is based upon a purpose o harming the public
interest, is too ague. 1he intent element ailed to proide the legal clarity
necessary or a restriction on reedom o expression and generally iolated the legal
principle o nulla poena sine lege.
9
\hile the decision is, on its ace, an
adancement o the protection o indiidual rights, the holding itsel is narrow. It
is unconstitutionally ague to ask courts to diine intent by a deendant to damage
public interest, but this legal deect has limited applications in other cases,
including the challenge to the RNVS. In act, it seems entirely possible that the
National Assembly could modiy the language o the statute to satisy the
agueness objection, potentially reinstating a similar proscription on expression.
Lxpression-related considerations may be the most obious diiculties raised
by the RNVS, but their signiicance is heightened and clariied in the context o
other, and I argue more oundational, legal rights. I propose as an alternatie a
rights ramework o equality,autonomy as a critique o the RNVS. In this context,
respecting the right o anonymous online expression` also respects, on an
essential leel, the basic equality and autonomy o the members o the society.
B. Lquality,Autonomy Approach
At its most sweeping and ambitious, cyberspace creates the potential or
dramatically improed degrees o equality amongst indiiduals. 1aking or a
moment the notion o equality as equal access to and sharing o a beneit, a orm
o equal treatment`, internet high-speed access ia an uncensored network
proides ,in general and thus ar, equal online access to each end user. Based on
the low barriers to content contribution through arious online channels, equal
access also means equal opportunities to interact with and contribute to the body
o publicly aailable shared content. Surely, there is no guarantee that any
particular content will receie equal exposure to an audience or equal readership or
iewership. loweer, the act remains that the channel o expression is open, a
perpetual soapbox in the public square, whether or not anyone is listening to the
particular speaker.
Access to high-speed internet is a central assumption o the iew o cyberspace
as a resource and community o equal accommodation. 1he assumption is
certainly iolated in eery society, as ubiquitous network access does not exist in
any particular society ,Korea is one o the nations that comes closest
80
,. Network
access introduces a crude and general diision ,between the class o indiiduals
with access to high-speed internet and those without access, with a distinctly socio-
economic dynamic. \ithin the class o indiiduals that does hae access, howeer,

9
1his maxim roughly translates as no penalty without law`.
80
Some studies hae ound Korea to hae the world`s highest internet access rate. See S" Korea (ops
8ECD in 1nternet 2enetration, KORLA 1IMLS, June 1, 2008, a/ai-aA-e at
http:,,www.koreatimes.co.kr,www,news,biz,2008,06,123_2600.html, OpenNet Initiatie: South
Korea, http:,,opennet.net,research,proiles,south-korea ,May 10, 200,, Rob lrieden, #essons fro'
%roadAand De/e-op'ent in CanadaE apanE Korea and the .nited States, 29 1elecomm. Pol`y 595, 59 ,2005,.
John M. Leitner

118
cyberspace represents a sphere o existence ree rom ,or at least reer rom, socio-
economic inequalities and social constraints. Lquality is oten understood in terms
o ormally equal treatment rom the goernment, with a special ocus on equality
o basic political participation.
81
1he goernment cannot engage in actions that
impermissibly exclude citizens rom the political process.
1his conception o equality, ocused on political participation and perhaps the
rejection o many orms o acial statutory or regulatory distinctions based on
demographic group, is an inadequate elaboration o the concept o equality in a
modern, deeloped democracy. It should not be accepted, and a more robust
ision o equality should be pursued.
82
1he RNVS presents a particularly stark
example o obstructing an opportunity or greater social equality. 1he equality
captured by cyberspace is, by its nature, potentially one o equal access to the tools
that can achiee uniquely personality-airming and liestyle-liberating potentials.
1he opportunity exists or the aoidance or mitigation o stigmas, attaching to
indiiduals or groups, because o an exemption rom those social constructs that
impose stigmas and burdens. In the case o Korea, or instance, where indiiduals
o a non-heterosexual orientation requently ind it diicult or impossible to reeal
their orientation,
83
the anonymous and geographic obstacle-negating characteristics
o cyberspace may proe ital to sel-expression, sharing o experiences, and the
elaboration o personal identity.
Another brie example may be illustratie. Korea imposes a ariety o express
restrictions on political expression, as codiied in such statutes as the National
Security Act.
84
Indiiduals who engage in purely abstract political expression may
risk prosecution, een at the present time.
85
1his issue may be understood in terms
o a debate oer reedom o expression, which in Korea is conducted according to
the weighing o indiidual liberty interests against social stability and security
interests, as discussed supra. But might this case present a question o equality
Does the society treat its citizens as equal, not just in terms o neutral application
o laws, but with an awareness o the disparate impact o the laws on dierently

81
Len conining one`s ocus to equality o political participation, the RNVS is problematic in its
impact on indiidual expression regarding political and social issues.
82
1he Constitutional Court recognizes a theoretical hierarchy` o rights, determined according to
the necessity and importance o the right in question in adancing human dignity. According to the
Court, lreedom o expression is the oundation or the existence and deelopment o a democratic
country, and thereore one o the characteristics o modern constitution is that this reedom enjoys a
superior status`.` 89lun-Ma165, 3 KCCR 518, 534 ,Sept. 16, 1991,.
83
lor example, at Seoul National Uniersity, the national uniersity o Korea, undergraduate students
inoled in a student gay-lesbian-bisexual journal work rom an undisclosed oice location and write
pseudonymously.
84
National Security Act, supra note 6.
85
In one recent example, a sociology proessor was prosecuted or his comment that America was to
blame or joining the Korean \ar and preenting North Korea rom uniting the peninsula under a
single communist regime. Jung Lunjung, 3io-ation of ,ationa- Securit0 #aw A0 2rofessor Kang ungkuE
Sentenced to > 0ears of 1'prison'ent and C 0ears of 2roAation, |KukAoAeoA .iAan Kang ung Ku k0osu
jing0oek>n0unE jipheng0u0eCn0un seongo[, lLRALD K\UNGJAL, May 26, 2006, a/ai-aA-e at
http:,,news.naer.com,main,read.nhnmode~LSD&mid~sec&sid1~102&oid~016&aid~00002098
9.

119
situated indiiduals Does the law accord to each citizen an equal degree o
respect and, to utilize the language o the Constitutional Court, dignity` 1he
goernment has an obligation not to obstruct the equality o citizens through the
creation and enorcement o policies that iolate the principle that indiiduals be
treated as equals.
86
1he ability to articulate at least abstract philosophical iews is
not only a question o expression, but also o the indiidual`s entitlement to be
regarded as politically and socially equal to other members o the society. 1he
inequality underpinning this legislation is the suppression and marginalization o
members o the society based upon their belies and their desire, in the absence o
criminal sanction, to deelop their public persona in the context o those belies.
1he logistically simple but, practically speaking, presently impossible
8

rectiication or this particular injustice is the repeal o at least certain proisions o
the National Security Act. Lxpanded and continuous public debate o this law,
and potentially urther public impact lawsuit adjudication, is in order. In the
meantime, a principally anonymous cyberspace acilitates a more open orum or
discourse that does, inasmuch as it eludes suppressie police action, adance a de
facto situation o equal respect o indiiduals with arying philosophical and social
iews.
I one considers seriously the notion that priacy`, or any other legal right,
contains within it an entitlement to ormulate personal decisions that operate
within a sphere o priacy that is psychological and not necessarily physical,
88
then
the state has a duty to respect the exercise o that autonomy, whether it is in the
priacy o one`s own home`, another more obserable physical locale, or in
cyberspace. Indiidual reedom o certain indiiduals to pursue a lie that is more
equal to those with less stigmatized or marginalized procliities or opinions is
obstructed by the RNVS, which poses heightened threats o identity reelation and
arious orms o legal and social repercussions. \hether or not such
repercussions requently occur, the mere existence o the requirement to reeal
one`s identity chills` the expressions and actiities urgently needed to mitigate the
marginalization o society`s most ulnerable members.

86
1his articulation o a negatie right o equality, that is, a right to be ree rom goernment action
that causes or exacerbates one`s status as unequal, could be made more robust by including, explicitly,
a positie equality right. In the latter case, the goernment would bear airmatie obligations to
actiely promote greater equality within the society. I conine this discussion to negatie right
applications ,speciically, reedom rom goernment coercion to reeal one`s identity online,, but the
idea o positie rights is certainly proocatie.
8
1he specter o military conlict with North Korea proides a rationale or legislators supportie o
the law`s police power dimensions to inoke to justiy its perpetuation. lor a urther discussion o
the National Security Act, see Leitner, supra note 6.
88
lor a discussion o diering conceptions o liberty, where liberty as independence` is
distinguished rom a notion o license, see Dworkin, supra note 9, at 262-265. Liberty as
independence may be a useul rame o reerence or construing the nature and scope o autonomous
personal control.
John M. Leitner

120
VI6 Con'l-s(on
1he general eect o the RNVS has been to recast the Korean experience o
cyberspace as relatiely less priate, less expressie, and less equal. All three o
these terms may be subject to arying interpretations, but I hae intended to
coney the ollowing meanings:
,1, Priate: Korean internet users wishing to actiely utilize popular
channels o communication and interaction hae signiicant
obstacles to ,legal, concealment o their identities. Indiiduals are
obstructed rom engaging with online communities, a ailure to
respect priacy as it relates to personal choices about identity and
independent liestyle.
,2, Lxpressie: the absolute quantity o expression is reduced, including
expression that is not illegal or otherwise eligible or curtailment
under existing Korean law. Lxpression that may be o questionable
legal status under existing laws, but with signiicant substantie
political and social content, is particularly likely to be limited. 1his is
most true or political and social expression relating to ideological
and social minorities in Korean society.
,3, Lqual: cyberspace`s central characteristic as a place o equal access
and equal participation is diminished. Online actiities also lose
their potentially unique character as aenues or achieing actual
equality o treatment, status, and dignity amongst indiiduals,
especially or those most likely to be stigmatized outside o an
anonymous cyberspace context.

It remains to be seen whether the Constitutional Court will conclude that the
System, as currently operated, iolates constitutional requirements and as such
must be modiied or abolished. I argue that the System should be seen to iolate
indiidual rights principles identiied in the Constitution, and should be struck
down as unconstitutional. Other societies who alue and seek to protect broad
and technology-adaptie conceptions o equality, priacy, autonomy, and ree
expression should careully consider the impact that such policies as name
eriication would ultimately hae on indiidual rights, understood in the context
o the unique potentials and railties o cyberspace.

An o1e&1(e/ of foo5 safet. &e)-lat(on (n !o&ea
0 P&e'a-t(ona&. P&(n'(8le 1s6 Cost04enef(t Anal.s(s 0
Seong Wook Heo
I6 Int&o5-'t(on
I would like to gie a presentation on the issue o ood saety regulation in Korea
in the order o next two sequences.
1he irst one is an oeriew o the lood Saety Act o 2008 which has been
enacted recently in Korea, and the other one is some short discussion about the
relationship between precautionary principle and Cost-Beneit Analysis in ood
saety regulation.
II6 T+e ,oo5 Safet. A't of 2CCF
1. Background
\hile getting through with the incidents o mad cow disease and melamine
additie, Korean people got more interested in the issue o ood saety. And these
increased interests o the public in ood saety lead the Congress to enact the new
lood Saety Act o 2008 ,hereinater the lSA`, which was promulgated in June
13
th
2008 haing its eect rom December 2008.
Beore the enactment o the lSA, the Korean ood saety regulatory system
was under the criticism o being incomplete and ineicient, in the sense that the
Seong \ook leo

122
releant rules and regulation on ood saety was separately diided according to the
types o ood and to the leel o distribution, and each dierent administratie
agency was in charge o maintaining ood saety.
1

2. Oeriew
A. 1he lood Saety Policy Committee ,Article -14,
1o cure these incompleteness and ineiciency in ood saety regulation, the lSA
establishes the lood Saety Policy Committee ,hereinater the lSPC`, which is to
comprehensiely coordinate the ood saety policy o goernment.
1he lSPC belongs to the Oice o Premier and is headed by the Prime
Minister as a chairperson. 1he lSPC is composed o about 20 members who are
considered to hae specialized knowledge and experience about ood saety
including the Minister o Strategy and linance, the Minister o Lducation, Science
and 1echnology, the Minister o Justice, the Minister o lood Agriculture, lorestry
and lisheries, the Minister or lealth, \elare and lamily Aairs, the Minister o
Lnironment, the chie o the Oice o lood and Drug Saety, and ciilian
specialists, etc.
1he lSPC does the reiew and coordination o ollowing issues.
,1, Basic planning o ood saety
,2, Major policies on ood saety
,3, Rules and regulations on ood saety
,4, lazard analysis on ood saety
,5, Countermeasures against serious ood saety accident

1hrough the role and unction o lSPC, it is expected that the ood saety policy
be executed in a more systematic and consistent way.
B. 1he Planning o lood Saety Administration ,Article 6,
1he Prime Minister has to deise the master plan or ood saety under the
deliberation o lSPC eery three years.
1he Ministers and the goernors o local goernment hae to deise and
enorce ood saety administratie plan based on the master plan aboe.
1hrough these planning and ealuation o the plan enorcement, it is expected
that more systematic deising and enorcement o ood saety policy be possible
and through this oerall ood saety be improed.

1
It was reported that Korea had more than 230 legislations related to ood saety in 2004, and the
regulatory authority on ood saety was dispersed to many dierent administratie agencies.
An Oeriew o lood Saety Regulation in Korea

123
C. Building up the emergency measures system and a ollow-up surey
,Article 15 - 19,
1o cope with the adent o new style hazardous ood addities, it is necessary to
build up the central goernment-leel emergency measures system.
\hen the central or local goernment inds that there happened or probably
would happen serious risk to the health o people, it should deise the emergency
measures plan and enorce it.
1he Ministers can prohibit the producing and selling o the hazardous ood,
een beore the scientiic eidence o the hazardousness has not been proided,
and should do the ollow-up surey o the source o hazardousness.
By these emergency measures, it is expected that people`s uneasiness about the
ood saety can be calmed at the earlier stage.
D. 1he mandatory risk assessment ,Article 20,
1he Ministers hae to do the mandatory ex-ante risk assessment when making or
reising the rules and regulations on ood saety.
1he Ministers hae to enorce the lACCP,lazard Analysis Critical Control
Point, regulatory system.
By these scientiic administering o ood saety, it is expected that the
eiciency o ood saety administration and public conidence in ood saety can
be heightened.
L. 1he inormation disclosure on ood saety ,Article 24,
1he goernment has to build up and operate the comprehensie ood saety
inormation managing system.
1he Ministers hae to disclose the related inormation to the producers and
consumers when making a ood saety policy.
1he Ministers can open the inormation o the producers and their products
when they iolate ood saety rules and regulations.
l. 1he participation o consumers into the ood saety administration ,Article 28,
1he Ministers hae to make systematic channels through which consumers can
participate into the making o ood saety rules and regulations.
3. Summary
By integrating the dispersed authorities and regulations on ood saety to one
authority and one ramework legislation and reinorcing the policy measures to
ight against hazardous ood, the lSA is expected to build up the more
sophisticated and powerul administratie system in ood saety.
Seong \ook leo

124
loweer, the story may not end as such a happy ending as many Aesop`s
lables did.
\e need to talk more about ood saety regulation in the perspectie o
precautionary principle and cost-beneit analysis.
III6 P&e'a-t(ona&. P&(n'(8le an5 Cost04enef(t Anal.s(s (n foo5
safet. &e)-lat(ons
1. Introduction
1he ood saety regulation issue is about the problem o Risk in modern society.
1he administratie measure against Risk has the choice under uncertainty as its
essence.
Compared to other traditional issues in administratie law, the modern
administratie law issues are more complicated in the sense that they hae to deal
with the problem o Risk, or example, hazardous ood, swine lu, mad cow
disease, global warming, and the war against terror.
It is hard to know how hazardous some new ood addities, or example,
melamine, ex-ante. loweer, still under such uncertainty, goernments are
required to do something about the melamine, when the public people are terriied
by the possible harm rom eating melamine to themseles or to their children. But
it is not easy to ind the appropriate policy measures in such situations.
It seems to me that the lSA can possibly be understood as requiring the
goernment to take the Precautionary Principle posture in ood saety.
But, the ood saety issue is not as simple as that.
2. 1he Precautionary Principle
A. Background
In such a Risk situation, the goernments are commonly required to take policy
measures in accordance with the Precautionary Principle, which requires that the
goernment should do whateer possible measures to preent the realization o
the Risk into real harm.
loweer, it is not so easy to understand what exactly goernment should do
to ollow up the precautionary principle. Because, in modern society there are so
many dierent kinds o Risks around us, and it is not possible to take
precautionary measures to all those Risks. Actually, Risks are all around us.

125
B. 1he concept o the Precautionary Principle
It is not certain what exactly does the Precautionary Principle mean or require.
Actually, we can ind more than twenty dierent kinds o deinition o the
Precautionary Principle which are not compatible with each other.
\e can arrange those dierent deinitions in a continuum rom a weak ersion
to a strong ersion.
2

1he most cautions and weak ersion o the deinition might be like this one, as
declared in 1992 Rio Declaration.
A lack o decisie eidence o harm should not be a ground or reusing to
regulate.` or \here there are threats o serious or irreersible damage, lack o
ull scientiic certainty shall not be used as a reason or postponing cost-eectie
measures to preent enironmental degradation.
A stronger ersion o Precautionary Principle is like this. 1he Precautionary
Principle means that action should be taken to correct a problem as soon as there
is eidence that harm may occur, not ater the harm has already occurred.`
In a more strong ersion, it is said that the Precautionary Principle mandates
that when there is a risk o signiicant health or enironmental damage to others or
to uture generations, and when there is scientiic uncertainty as to the nature o
that damage or the likelihood o the risk, then decisions should be made so as to
preent such actiities rom being conducted unless and until scientiic eidence
shows that the damage will not occur.`
C. Precaution and Paralysis
1he Precautionary Principle is generally understood as a good meaning to the
public, because it gies the impression that the goernment can do exert that kind
o superpower i required.
loweer, such understanding can be quite misleading.
In the real world, we are aced with ery dierse kinds o Risks in eery aspect
o our lies. Basically, it is impossible or any super-power authority to take
precautionary measures to all the Risks around us, because it takes some portion o
resources we hae, and the resources are inite.
So, i the goernment is required to take the posture o the Precautionary
Principle to whateer kinds o Risks, it will inally be able to do nothing.
I a goernment exerts its best eort to ight against the mad cow disease to
the leel o perect precaution,i it is possible anyhow,, it will let the people be
aced with higher leel o Risks in other ields, or example, Risk to malnutrition,
or Risk to Global \arming, etc.

2
Cass R. Sunstein, #aws of Fear; %e0ond the 2recautionar0 2rincip-e, Cambridge Uniersity Press, 2005
,hereinater, Laws o lear`,, 18-19.
Seong \ook leo

126
1he goernment ineitably has to make some ordering o Risks, and hae to
decide which Risk to be taken seriously than others.
But the Precautionary Principle, especially the stronger ersion, itsel does not
gie us any guidance on the point.
D. lactors aecting people to hae precautionary posture
Regardless o the obious result that strong ersion o the Precautionary Principle
is unattainable, people tend to expect and require the goernment to take
precautionary measures in daily lie. \hat is the reason
\e can ind some actors inluencing people`s decision and acting in the
perspectie o behaioral economics.
3

)a* 9/ai-aAi-it0 Heuristic
People tend to be more sensitie to salient Risks. 1hose saliencies can be made
through personal experiences or media exposure.
lor example, people who hae the experience o traic accident to themseles
or to their amily will generally assess the Risk rom traic accident much higher
than those who do not hae that kind o experience.
\hen people are repeatedly exposed to some speciic kinds o Risks through
media, they tend to be more sensitie to the Risk, and that can lead them to press
the goernment to take precautionary measures against that Risk. 1he swine lu
can be a good example.
)A* 1ntuiti/e (o+ico-og0
1he general people tend to be more sensitie to hazardous materials than the
proessionals on toxicology.
Moreoer, people tend to consider the ood saety problem as all or nothing
problem. 1hey think o ood addities as totally sae or too dangerous to their
health to be added to ood. 1hey are not trying to understand that there are in-
betweens.
1his intuitie toxicology can lead to the precautionary demand to the
goernment.
)c* Socia- Cascades
Certainly, human beings are not sheep, but in many cases, they just ollow up other
people`s decisions and behaiors.
\e can ind many positie and experimental eidences o social cascades.
4

3
1he concept o those actors explained below, or example, aailability heuristic, intuitie
toxicology, social cascade, etc. are explained in detail in many social science books and papers.
Among them, I generally reerred to the explanation o Cass R. Sunstein in Wh0 Societies ,eed
Dissent,2003,, Risk and Reason,2002,, and #aws of Fear,2005,.

12
Social Cascade can also be made in the area o ood saety.
Len under the circumstances o uncertainty about the hazardousness o ood
addities, when some major groups o people strongly argue that the ood additie
is dangerous or health, people tend to ollow the other people`s opinion.
1hese social cascades made as such put pressure on the goernment to take
precautionary measures, een beore the scientiic eidence o Risk has not been
proided.
)d* Group 2o-ari=ation
People hae the tendency to reach the more polarized conclusion when they
deliberate in group than when they think o some issues indiidually.
Many examples o group polarization can be ound in real lie.
People who were just concerned about Global \arming can become an ardent
adocate o international measures against Climate Change ater coming back rom
a conerence on Global \arming. Laypersons who are in a group discussion
about hazardous ood addities organized , or example, by NGOs, tend to
become more strict about ood saety.
1his Group Polarization gets stronger when the group is composed o people
o similar thought, and gets weaker when the group is composed o people o
dierent thoughts or when proessionals who hae relatiely correct knowledge on
the issue are among the group.
1he Group Polarization also inluences the making o statutory ramework on
ood saety and it tends to lead the statutory ramework in the direction o the
Precautionary Principle.
)e* Hea-thBHea-th (radeoffs
All things and eents in the world around us are correlated with each other. In
that sense, it is not easy to sole some problem by separating the speciic issue
rom other things.
1he ood saety issue is no exception.
1aking precautionary measures against a speciic health issue may inoke a new
problem to other part o health.
lor example, let`s think o the case when the goernment orbids using a
certain ood additie, in such case, the ood producers will try to ind a substitute
o the orbidden additie. And, the new ood additie might be more harmul to
health or cause new risk.
In the U.S., when the use o asbestos was orbidden under the consideration
that inhaling asbestos can raise the possibility o getting cancer, the car makers
could not use asbestos to brake system anymore, which made the perormance o
brake worse than beore, and caused higher rate o traic accident. And, more

4
About the experimental eidences on cascade eect, reer to Cass R. Sunstein, Wh0 Societies ,eed
Dissent, larard Uniersity Press ,2003,, 54-3.
Seong \ook leo

128
lies than that could be saed by orbidding the use o asbestos were sacriiced by
the traic accident. 1his example shows the tradeos between health and health,
the tradeos between lie and lie.
Laypersons who do not hae proessional knowledge on ood saety are likely
to do not recognize the health-health tradeos, and are likely to demand the
precautionary measures against some speciic kinds o risk.
3. Cost-beneit analysis
A. Introduction
Cost-beneit analysis has become an increasingly popular tool in modern
administration.
Indeed, cost-beneit analysis is oten claimed as an alternatie to the
Precautionary Principle. Instead o blindly taking precautions,` it is argued that
administratie agencies should assess the beneits and the costs o regulation.
Only in the case o the beneits outnumbering the costs, is the regulation justiied.
5

B. 1he Administratie Regulation Act Article
1he article o Administratie Regulation Act o Korea requires the administratie
agencies to do beneit-cost analysis in making a new regulation or enorcing a
stricter regulation and make a report on the regulatory analysis.
According to that clause, all administratie agencies are doing beneit-cost
analysis in a new or stricter regulation.
\hat matters is whether the mandatory beneit-cost analysis in the ARA is
compatible with the Precautionary Principle in the lSA.
C. Cost-beneit analysis and incommensurable alue
1he most striking criticism on cost-beneit analysis is that there are cases when the
alue pursued by administratie policy is incalculable and incommensurable.
Actually, it is not such an easy job to calculate the alue o lie inluenced by
ood saety regulation.
loweer, the problem is that we hae to make policy decisions and make
choices among incompatible alternaties een under the circumstances o
incalculability and incommensurability.
1o sole the problem o incalculability and incommensurability, many
researches hae been done and regulatory agencies are using the calculating tools
so made in actual cost-beneit analysis.
Some o the examples are as ollows.

5
Sunstein, Laws o lear, 129.

129

Table 1: Val-es of L(fe St-5(es
|LPA, Guide-ines for 2reparing Econo'ic ana-0ses 4@, 2000, recited rom Laws o lear, Sunstein, 135[

Table 2: A)en'. Val-es of L(fe, 1GG@02CC$
|Cited rom Laws o lear, Sunstein, 133[

Seong \ook leo

130
D. 1he Precautionary Principle s. cost-beneit analysis
I we take a strong ersion o the Precautionary Principle, then it seems that it is
not compatible with cost-beneit analysis, because the strong ersion o the
Precautionary Principle commands the regulatory agencies to take precautionary
measures without regard to the cost o taking the measure.
And we hae seen that the strong ersion o the Precautionary Principle leads
to the paralysis on public policy.
1here are many discussions on the relationship between the Precautionary
Principle and cost-beneit analysis.
I cannot coer up all the discussions in this paper.
I would rather point out that both the Precautionary Principle and cost-beneit
analysis are important in ood saety regulatory system designing.
My idea is that the policy measures prescribed in the lSA under the ein o
Precautionary Principle should be complemented with the perspectie o cost-
beneit analysis. And, cost-beneit analysis itsel needs to be reined and
substantialized.
IV6 Con'l-s(on
In this paper, I gae a brie reiew o the lood Saety Act o 2008 in Korea in the
perspectie o the Precautionary Principle. 1he regulatory agencies are likely to be
under the pressure rom the public to take the precautionary measures in ood
saety regulations. loweer, there are many things to consider in applying the
Precautionary Principle in real world o ood saety regulation.
My suggestion is that the Precautionary Principle should be complemented by
cost-beneit analysis in a reined and sophisticated way. 1he clauses o lSA should
be understood in that context.
Actually, the issue o balancing between the Precautionary Principle and cost-
beneit analysis entails ar more complicated and philosophical subject o how to
understand the concept o democracy.
I will leae it as the subject o my ollow up researches.

SECTION %:
CRIMINAL LAW AND CRIMINOLOY

Obs'en(t. (n a C+an)(n) So'(et.
Sang Won #ee
I6 Int&o5-'t(on
Obscenity cases relect the changes in the means o communication. 1raditional
obscenity cases mainly targeted physical actions and works such as books or
pictures and then began to ocus on ilms. Modern obscenity cases are easily ound
on the Internet, where images or ideos o sexual conduct are main targets.
1he Internet is a great stage or the pornography industry. As o 2006, eery
second, >3,05.64 is being spent on pornography, 28,258 Internet users are iewing
pornography, and 32 Internet users are typing adult search terms into search
engines, eery 39 minutes a new pornographic ideo is being created in the United
States.
1

1he pornography industry is larger than the reenues o the top technology
companies combined: Microsot, Google, Amazon, eBay, \ahoo!, Apple, Netlix
and LarthLink. 1he ollowing chart shows how lucratie the industry is. It also
shows that Korea is the second largest country or this industry and the irst in
reenue per capita.

1
http:,,amilysaemedia.com,pornography_statistics.html4time ,last isited Sept. 3, 2010,. 1he
statistics mentioned in this section are taken rom the same web page.
Sang \on Lee

134
Table 1: Wo&l5/(5e Po&no)&a8+. Re1en-es H2CC@I

1he internet pornography industry is in particular huge. Chart 2 demonstrates the
size o the internet pornography market.

Obscenity in a Changing Society

135
Table 2: Inte&net Po&no)&a8+. Stat(st('s

1he United States is the biggest producer o pornography in both ideos and \eb
pages, as Chart 3 and Chart 4 show.

Table $: To8 V(5eo Po&n P&o5-'e&s Table %: Po&no)&a8+(' Web Pa)es

Sang \on Lee

136
1his easy access to pornography has reied arguments on opposing sides o the
obscenity debate: anti-pornography groups call or increased punishment to
preent moral decline and addiction, while ree speech actiists insist that
obscenity prosecutions abridge the reedom o speech.
2
Strong enorcement o
obscenity law might result in repression o the rights o citizens, generous
regulation might result in moral insensibility and een sexual crimes.
Actually, many countries ban pornography. Among them, Saudia Arabia, Iran,
Syria, Bahrain, Lgypt, UAL, Kuwait, Malaysia, Indonesia, Singapore, Kenya, India,
Cuba, China are top pornography banning countries. It is interesting to note that
most o these countries are Muslim.
Korea has seeral statutes stipulating that obscenity with certain requirements
be a crime. Article 243 o the Criminal Act proides that those who distribute, sell,
lease, exhibit in public or play in public obscene paper, picture, ilm and other
materials shall be punished with an imprisonment not more than one year or a ine
not more than ie million won. Article 244 proides that those who produce, hae
in possession, import or export obscene materials with the intent o oering
materials or the crimes described in the article 243 shall be punished with an
imprisonment not more than one year or a ine not more than ie million won.
Article 245 proides that those who conduct an obscene act in public shall be
punished with an imprisonment no more than one year or a ine not more than
ie million won. 1he Criminal Act proides only the basic orms o obscenity
crimes. Korea has many special laws that enhance the penalty under certain
circumstances. Among those are the Act on the Punishment o Acts o Arranging
Sexual traicking, the Act on Promotion o Inormation and Communications
Network Utilization and Inormation Protection, etc., the Lmployment Security
Act, and the Act on the Regulation o Amusement Business Aecting Public
Morals.
Lspecially regarding Internet obscenity, the Act on Promotion o Inormation
and Communications Network Utilization and Inormation Protection, etc.
proides that whoeer circulates particular inormation on the internet, including
to distribute, sell, lease or exhibit in public obscene signals, words, sounds, images
or ideos, circulate on the Internet shall be punished with an imprisonment not
more than one year or a ine not more than 10 million won.
\hile these statues regulate the obscene` or obscenity`, the meaning o
obscene` or obscenity` is not always clear, rather it is such a ague notion that
citizens may tremble with ear o unpredictable legal interpretations and arbitrary
imposition o punishment.

2
Shannon Creasy, Defending 9gainst a Charge of 8Ascenit0 in the 1nternet 9ge; How Goog-e Searches Can
1--u'inate !i--erJs RConte'porar0 Co''unit0 StandardsS, 26 Ga. St. U. L. Re. 1029, 1031 ,2010,.

13
II6 >-5('(al Un5e&stan5(n)
1. Understanding in Korea
A. Deinition
1he Korean Supreme Court has a irm deinition o obscenity. 1he Court has
deined obscenity in many cases as what prookes, excites or satisies a sexual
desire o an aerage person, spoils a normal sense o shame o an aerage person
3

and runs counter to good sexual morality.`
4

Although there has been little change in the deinition itsel, the Court has
become more generous against obscenity as the Korean society has become more
and urther open to sexual expression. In the 190s, the Court had strict concept
o obscenity. 1he court ound guilty o selling an obscene picture a deendant who
copied a nude image o a woman rom an art-drawing anthology and sold the
copies in order or matchbox manuactures to insert those copies in matchboxes
and sell them.
5
1he Court reasoned that, een though the original painting was a
work o art, the deendant insulted the art and made it obscene.
6

loweer, the present Court might take dierent position about this case i it
came to the Court now. lolding that it is not desirable or criminal law to
interene in moral or ethical problems, and een worse to interene in indiidual
and priate sexual problems, the Court stated that obscenity is limited only those
materials depicting or describing sexual organs or conducts without resere to the
extent o haing a harmul inluence to the society.

B. In Part or As a \hole
In the 190s, the Court seemed to allow the lower court to ocus on part o the
material in judging whether the material was obscene. Rejecting the appellant`s ,the
prosecution`s, argument that the lower court`s judgment erred in conicting him
because it held the noel in question was not obscene taken as a whole, the Court
stated that the lower court`s judgment rested on the speciic part o the noel
which the prosecution brought into the court and that the lower court`s statements
about the whole content o the noel were just dicta.
8

3
1his spoils a normal sense o shame o an aerage person` might be understood as causes an
aerage person to eel shame.`
4
KSC 2006do3119 ,2009,, 2008do6 ,2008,, 8do2331 ,198,, and many others.
5
KSC 0do189 ,190,.
6
1d.
KSC 2008do6 ,2008,.

8
KSC 4do96 ,195,.
Sang \on Lee

138
In more recent cases, howeer, the Court made it clear that it is crucial
whether the material mainly prookes prurient interest when iewed as a whole.
9

C. \ho decides
Admitting that obscenity is a relatie notion the deinition o which aries
according to society and time and at the same time an abstract notion which has
close relation to the customs, ethics, religions, etc., the Court neertheless held that
it is a normatie notion which a judge himsel can deine based on an aerage
person`s eeling.
10
1he court decided that a judge is the inal ealuator and does
not hae to engage in the empirical exercise o gathering the opinions o ordinary
men whether the material in question prookes their sexual interest and they think
it obscene.
11

2. Understanding in the US
A. licklin 1est
In early days o American obscenity law, between the Ciil \ar and the 1930s, the
US ederal courts largely ollowed a rule rom an early Lnglish case, Regina /"
Hick-in.
12
1he licklin test allowed any material that could deprae and corrupt
those whose minds are open to such immoral inluences` to be banned as
obscenity.
13
1his test had the unintended result o assessing materials based on the
eect they had on the most susceptible, or sensitie, members o the community.
14

Under Hick-in, books and other materials could be judged obscene based on the
eect an insigniicant, isolated passage had on a child.
15
1he licklin test ixed a
community standard or reading matter based on the eeblest mentality or most
suggestiA-e indiidual in the community.
16
1hus, this licklin test ocused on the
eect certain passages would hae on particularly susceptible people, not on the
public as a whole, and was oten used to proscribe contemporary literature.
1
1his
test was used against literature like 1heodore Dreiser`s 9n 9'erican (raged0
18
and
D. l. Lawrence`s #ad0 Chatter-0Js #o/er.
19

9
KSC 2008do6 ,2008,, KSC 2003do2911 ,2003,.
10
KSC 94do2266 ,1995,.
11
1d.
12
Bret Boyce, 8Ascenit0 and Co''unit0 Standards, 33 \ale J. Int'l L. 299, 30 ,2008,.
13
l. lranklin Robbins, Jr. & Steen G. Mason, (he #aw of 8Ascenit0 T or 9Asurdit0O, 15 St. 1homas L.
Re. 51, 523 ,2003, at 523 ,citing Queen . licklin, ,1868, L.R. 3 Q.B. 360, 31,.
14
Boyce, supra note 12, at 311, Robinson & Mason, supra note 13, at 523-24.
15
Lric landelman, 8Ascenit0 and the 1nternet; Does the Current 8Ascenit0 Standard 2ro/ide 1ndi/idua-s with the
2roper Constitutiona- SafeguardsO, 59 Alb. L. Re. 09, 18 ,1995,.
16
1d.
1
1d. at 1-18.
18
Commonwealth . lriede, 11. N.L. 42, 43 ,Mass. 1930,, landelman, supra note 15, at 18.
19
Commonwealth . Delacy, 11. N.L. 455 ,Mass. 1930,. landelman, supra note 15, at 18.

139
Since the licklin test ealuate literature in terms o those most susceptible to
corruption, as Judge Learned land correctly pointed out, the test would reduce
our treatment o sex to the standards o a child's library in the supposed interest o
a salacious ew.``
20

B. Roth 1est
Conronting this criticism, the licklin standard was abandoned with the U.S.
Supreme Court's ruling in Roth /" .nited States.
2122
Reusing to construe the lirst
Amendment as protecting eery utterance, the Court indicated that the lirst
Amendment should protect only those ideas haing some measure o social import
and reairmed that obscenity is not within the area o constitutionally protected
speech or press.
23
1he Roth Court expressly rejected the licklin test as
unconstitutionally restrictie o the reedoms o speech and press.`
24
1rying to
ind a less restrictie standard to protect legitimate material, Roth deined obscenity
as material which deals with sex in a manner appealing to the prurient interest.`
25

1he Roth Court urther reasoned that the sexual nature o art, literature, and,or
scientiic works was not, in and o itsel, reason to deny the material constitutional
protection.
26
Roth established a new test dierent rom the licklin test, which
judges the material in question as a whole rather than each portion indiidually and
applies the perspectie o the aerage person instead o a the most susceptible
member o society.
2
1he Roth test deemed material obscene when to the aerage
person, applying contemporary community standards, the dominant theme o the
material taken as a whole appeals to |the[ prurient interest.`
28

1he Roth test, howeer, has a deect that the meanings o the elements o the
test are not clear: ,i, who is the aerage person`, ,ii, what are contemporary
community standards` and how are those standards are determined, and ,iii, what
is the prurient interest`
29

C. Miller 1est
In !i--er /" Ca-ifornia, the Court established a new test.
30
!i--er ormulated a three-
prong conjunctie test requiring the trier o act to determine: ,i, whether the

20
United States . Kennerley, 209 l. 119, 120-21 ,S.D.N.\.,, landelman, supra note 15, at 19.
21
354 U.S. 46 ,195,.
22
Creasy, supra note 2, at 1036, George M. \eaer, lANDBOOK ON 1lL PROSLCU1ION Ol
OBSCLNI1\ CASLS 3 ,National Obscenity Law Ctr. ed., 1985,, Robbins & Mason, supra note 13, at
523-24.
23
Roth, 354 U.S. at 484-85.
24
1d. at 488-89.
25
1d. at 48.
26
1d"
2
1d. at 488-90, Boyce, supra note 12, at 316.
28
Roth, 354 U.S. at 488-89.
29
landelman, supra note 15, at 22.
30
413 U.S. 15 ,193,.
Sang \on Lee

140
aerage person, applying contemporary community standards` would ind that the
work, taken as a whole, appeals to the prurient interest, ,ii, whether the work
depicts or describes, in a patently oensie way, sexual conduct speciically deined
by the applicable state law, and ,iii, whether the work, taken as a whole, lacks
serious literary, artistic, political, or scientiic alue.
31
I the material in question
meets all three o the requirements o the test, that material is deemed obscene.
32

!i--er proided a restrictie test understanding o obscenity as ollows: ,i, it
expressly limited obscene material` to items that deal with sex, speciically
material depicting or describing hard core` pornography,
33
,ii, it emphasized that
the material in question should be iewed as a whole and could not be examined
piecemeal,
34
,iii, it limited state regulation to only that sexual conduct speciically
deined by statute, or authoritatiely construed, as being illegal to depict or
describe.
35

36
1his three-prong obscenity test o the Miller remains in eect today.
3

1he Miller test requires that an aerage person` apply cotemporary community
standards` to judge whether a material is obscene.
38

loweer, the Miller test has been widely criticized as unconstitutionally ague
and oerbroad.
39
Courts hae struggled to identiy and deine community
standards` since the introduction o the Miller test,
40
and a lot o debate has
centered on how to determine the true alues o a community.
41

III6 So*e C+allen)es
1. \hat is Community`
A. Vague notion
Despite the dierence between the two countries` deinition and despite the
dierences among the American tests, all the deinitions hae the contemporary

31
!i--er, 413 U.S. at 24-25.
32
1d. at 24.
33
1d. at 2.
34
1d. at 24.
35
1d. at 23-24.
36
Creasy, supra note 2, at 1038.
3
1d. at 1033.
38
1d. at 24.
39
!i--er, 413 U.S. at 3-48 ,Douglas, J., dissenting,, landelman, supra note 15 at 31-3, Creasy,
supra note 2, at 1038.
40
Boyce, supra note 12, at 324-25.
41
State . laltom, 653 N.\.2d 232, 239-40 ,Neb. 2002,, State . Brouwer, 550 S.L.2d 915, 919, 921
,S.C. Ct. App. 2001,, George M. \eaer, supra note 22, at 3 ,National Obscenity Law Ctr. ed., 1985,,

141
community standards` in common. loweer, it is still ague and subjectie what
the releant community is.
42

B. Scope o Community
Does the community standard` mean a local standard or a national standard
Beore !i--er, the U.S. Supreme Court applied a national standard in ederal
obscenity cases. In !anua- Enter"E 1nc" /" Da0, the Court stated that the proper test
under this ederal statute, reaching as it does to all parts o the United States whose
population relects many dierent ethnic and cultural backgrounds, is a national
standard o decency.`
43
In acoAe--is /" 8hio, the Court stated that a local deinition
o the community did not proide suicient protection o rights deriing rom the
U.S. Constitution.
44
In contrast, proponents o a local standard argued that gien
the size and diersity o the United States, a national standard would be
unascertainable.
45

In !i--er, the Court indicated that a local standard was appropriate. It stated,
People in dierent States ary in their tastes and attitudes, and this diersity is not
to be strangled by the absolutism o imposed uniormity.`
46
linding no error
where jury instructions called or a local standard, the Court stated that there is no
constitutional requirement or application o a national standard.
4
At the same
time, in Ha'-ing /" .nited States, the Court stated that the application o a national
standard is not a constitutional iolation either.
48
In enkins /" Georgia, the Court
stated that, while a |s[tate may choose to deine . . . the standards in more precise
geographic terms,` it is not constitutionally required to do so.
49

Considering all the cases aboe, it can be said that the cases demonstrate that a
national standard is neither required nor unconstitutional i applied, and that states
may designate a statewide standard by statute, but they are not required to do so.
50

Korea is neither ederal nor so dierse as the US. It is not such a hot issue to
choose between a national standard and a local standard. loweer, it is also true
that recent Korea is witnessing wider and wider gap between age groups, more and
more dierences between social groups, and more and more ethnic diersity. 1his
compels een Korean scholars and courts to consider which scope o community
would be best applied to the case at hand.

42
Jan Samoriski, ISSULS IN C\BLRSPACL, COMMUNICA1ION, 1LClNOLOG\, LA\, AND SOCIL1\ ON 1lL
IN1LRNL1 lRON1ILR 26, 269 ,Allyn & Bacon eds., 2002, ,Deinitions under the Miller standard .
can ary rom place to place, judge to judge, and een rom time to time,
43
Manual Lnter., Inc. . Day , 30 U.S. 48, 488 ,1962,.
44
Jacobellis . Ohio , 38 U.S. 184, 193 ,1964,.
45
acoAe--is, 38 U.S. at 200 ,\arren, C.J., dissenting, ,I beliee that there is no proable national
standard` . . . .`,.
46
!i--er, 413 U.S. at 33.
4
1d. at 31.
48
lamling . United States, 418 U.S. 8, 103-109 ,194,, which was rendered one year ater !i--er.
49
Jenkins . Georgia, 418 U.S. 153, 15 ,194,.
50
Sang \on Lee

142
C. Cyber-community
1he emergence o the Internet has made it more complicated to identiy the
releant community.
51
1raditionally, sellers o adult material could choose which
communities were appropriate locations or retail operations or were sae
distribution points.
52
loweer, sellers operating on the Internet cannot eectiely
limit access based on geographical location because the Internet deies geographic
boundaries.
53
Considering this, it would result in indiiduals being prosecuted by
the standard o the most restrictie community with access to the Internet,` i
courts stick to the traditional community test.
54

It does not seem that both Korean and US courts are giing special attention
to the unique characteristic o the Internet. In 9shcroft /" 9'erican Ci/i- #iAerties
.nion, the US Supreme court held that it does not iolate constitutional
requirements or a statute aimed at Internet regulation to rely on contemporary
community standards` in determining whether the materials are obscene.
55
In
.nited States /" (ho'as, the deendants argued or a new deinition o community
or the Internet, such as a cyber-community,` but the trial court declined to
address the cyber-community issue.
56
1he Sixth Circuit airmed the conictions,
holding that juries are properly instructed to apply the community standards o
the geographic area where the materials are sent.`
5

1he Internet deies geographical boundaries and cyberspace is the true
community where the posted materials in question are actually located.
58

1hereore, obscenity should be determined based on the cyber-community rather
than a geographical community. lere the releant community is the cyber-
community. In addition, since cyber-community reaches the whole world, there is
a strong need to ind a uniorm standard or the Internet.
2. Proing o Community Standard
In obscenity prosecutions o both Korea and the US, neither the prosecution nor
the deendant has the obligation to proide proo o the community standards.
59

1riers, judges or juries are presumed to already know the preailing community
standards.
60
Setting aside the issue o whether or not the community standard is to

51
Nitke . New \ork, 253 l. Supp. 2d 58, 603 ,S.D.N.\. 2003,.
52
Sean Adam Shi, (he GoodE the %ad and the .g-0; Cri'ina- #iaAi-it0 for 8Ascene and 1ndecent Speech on the
1nternet, 22 \m. Mitchell L. Re. 31, 49 ,1996,.
53
Boyce, supra note 12, at 34.
54
John 1ehranian, Saniti=ing C0Aerspace; 8Ascenit0E !i--erE and the Future of 2uA-ic Discourse on the 1nternet,
11 J. Intell. Prop. L. 1, 3 ,2003,.
55
Ashcrot . ACLU, 535 U.S. 564, 593 ,2002,.
56
5
1homas, 4 l.3d at 11 ,citing Miller, 413 U.S. 15, 30-34,, Creasy, supra note 2, at 1044.
58
Rebecca Dawn Kaplan, C0AerBS'ut; Regu-ating 8Ascenit0 on the 1nternet, 9 Stan. L. & Pol'y Re. 189,
193 ,1998,.
59
KSC 94do2266 ,1995,, leldschneider . State, 195 S.L.2d 184, 185 ,Ga. Ct. App. 192,.
60

143
be proed, both parties o an obscenity case may eel substantial or technical
burden to proe the applicable standards.
lirst, the parties can resort to expert witness testimony. 1here is not a
particular ield that produces obscenity experts`, but a wide ariety o indiiduals
representing many ields hae qualiied as experts to proide insight into
community standards, such as psychiatrists, psychologists, sociologists, ministers,
and een police oicers.
61
O course, expert testimony should be releant and not
misleading to the jury.
62

Second, sureys or opinion polls can be used or proing the community
standards. In order to be admissible, this eidence should meet certain
requirements: ,i, the poll should touch on the speciic issues at hand,
63
,ii, it should
not be too general and should properly describe the material at issue,
64
,iii, surey
questions should be careully crated to ensure releancy,
65
and ,i, the sample size
and selection should be based on reliable scientiic methods.
66

1hird, comparable materials can be introduced. Wo'ack /" .nited States
deeloped a test to determine the admissibility o comparable materials.
6
1he
\omack test requires that the deendant show: ,i, the materials are actually
similar` to the material at issue in the trial, and ,ii, the comparison materials enjoy
a reasonable degree o community acceptance.`
68

linally, now that the cyber-community is the releant community regarding the
Internet obscenity, data rom the Internet would be one o the most appropriate
eidences in the Internet obscene cases. Recently, Google search engines like
Google 1rends and Google Insights are attracting the attention o scholars as a
tool o proing the community standards.
69
According to this, Dierently rom
standard Google searches to show, or example, a mere array o pornographic
material on the Internet, Google 1rends and Google Insights data illuminate the
standard objectiely by proiding the actual access data o the users.
3. Burden o proo
1o the extent that obscene` or obscenity` is a constituent o legal concept, it is a
problem o judicial interpretation and ealuation whether or not the material at
issue is obscene. lor example, property o others` as the object o the crime thet
is determined by legal interpretation o the releant statues by a judge.

61
1d. at 1046.
62
Darlene Sordillo, E'ascu-ating the Defense in 8Ascenit0 Cases; (he E+c-usion of E+pert (esti'on0 and Sur/e0
E/idence on Co''unit0 Standards, 10 Loy. Lnt. L.J. 619, 63-38 ,1990,.
63
1d. at 623.
64
State . Midwest Pride IV, Inc., 21 N.L.2d 458, 46 ,Ohio Ct. App. 1998,, State . 1ee & Bee,
Inc., 600 N.\.2d 230, 233 ,\is. Ct. App. 1999,, Sordillo, supra note 62, at 642-43.
65
Sordillo, supra note 62, at 642.
66
\eaer, supra note 22, at 2.
6
\omack . United States, 294 l.2d 204, 206 ,D.C. Cir. 1964,.
68
69
Creasy, supra note 2, at 1054-58.
Sang \on Lee

144
Interpretation is the judge`s job and the prosecution does not hae to proe the
meaning o property o others`. loweer, notions like obscenity` are
somewhat dierent. Insoar as courts hold the position that obscenity` be judged
based on the community standards, that is, what an aerage person has in mind
regarding the material at issue, it is ineitable to ind what the community
standards are. 1he court should declare what the community is thinking rather
than what the judge is thinking. 1his is not a mere interpretation o a statutory
proision. 1hereore, the court should decide what the community standards are,
based on objectie eidence, not on subjectie ealuation.
I the community standards should be proed by eidence, who bears the
burden As a principle, in a criminal case, the prosecution bears the burden o
proo or all the elements o the charges which the deendant is accused o.
0
So is
proing the community standards. 1he prosecution should proe the material at
issue is obscene judged by the community standard.
IV6 Con'l-s(on
\hether a material is obscene is decided by the community standards. In an
Internet era, we must modiy the deinition o obscenity. At least in the Internet
obscenity cases, the community is to be understood as a cyber-community where
common criteria could be created beyond the geographical boundaries.
Len though obscenity is a legal notion belonging to judicial interpretation, the
prosecution bears the burden o proing the material at issue is obscene by
introducing eidence to proe the community standard.
1his theory may be generalized to apply to other legal notions whose meaning
is based on the ealuation or morals o the society.

0
1his has consistently reairmed by the Korean Supreme Court: KSC 2002do6110 ,2003,, KSC
2009do1151 ,2010,.

En5an)e& La/: Wa& on R(s:s (n e&*an C&(*(nal
La/
!ar$a #aura %&h'
I6 Int&o5-'t(on
1he ariation o criminal law, which I - critically - call endanger -aw
1
E is a criminal
law which is seeking security - and thereater ighting risks` and dangers`
2
- as its
main objectie and which is acting on the basis o risk patterns deeloped by this
law itsel. Indiiduals who it these characteristics are being ought against as
endangerers, that means, as high risky igures - and not as oenders. 1hey are not
considered normal criminals`, but as ho'ini insecuritas. In this paper I will present
this igure which has been constructed by the criminal policies and system in
Germany during recent years, and has been co-constructed by the Constitutional

1
1he concept o endanger -aw must not be mixed with the question o oences o concrete and
abstract endangerment, which are speciic orms o oences within German criminal law
,Gehrdungsdelikte`,. Lndanger law is actually a criminological and sociological concept which is
not related to the description o concrete orms o endangerment ,through physical actions acting in
accordance to a causal relationship between action and possible harm, but to the description of -egis-ation
and cri'ina- -aw. \hen we talk o endanger law, we are talking about criminal law ighting risky`
situations or indiidual eatures ,nor criminal actions, which are legally seen as potentially dangerous
or general security, according to this logic these high-risk situations justiy the aggressie early
interention o criminal law ,procedure, measures, criminalization, een in cases without crime,
without inchoate crime, and without oences o endangerment. 1hat is why it can be called endanger
-aw - law prosecuting risk and dangers - instead o criminal law.
2
In this paper I will use simple ` to reer to concepts or terms which I analyzed or put into question
because o its undetermined meaning and openness to dierent ideas ,organized crime`, risk` etc,
and which are usually - and erroneously - taken as clear closed concepts or most theorists,
politicians and judges. Double ` are used or the normal purpose o quotations.
Mara Laura Bohm

146
Court
3
in at least two cases: in the case o the acoustic ho'e sur/ei--ance ,akustische
Wohnrau'Aerwachung, and in the case o the suAse:uent incapacitation order ,nachtrKg-iche
Sicherungs/erwahrung
4
,. 1he aim o this article is to explain the internal logic and
rationality, which seems to be leading the criminal law when constructing these
mechanisms. In the irst part o this paper the igure o the endangerer will be
presented ,1.,. Ater that a sociological concept needed to understand the
rationality o the law constructing endangerers will be explained: the risk` ,2.,. 1he
two current constructions o the criminal system and o the Constitutional Court
will be presented in the next part ,3.,. Ater explaining the rationale o this
endanger law ,4.,, I will oer some critical remarks on it and on its constructions
,5.,.
II6 En5an)e&e&
1he term Islamist endangerer` ,1s-a'istische GefKhrderS, has been applied or the
last ie years by politicians when talking about the ight against terrorism.
5
\ith
this term they usually mean subjects, which are seen as potentially dangerous or

3
Germany has a centralized system or constitutional control. Not eery judge declares the
unconstitutionality o the law, this is done only by the lederal Constitutional Court
,%undes/erfassungsgericht,. 1his institution is thereore crucial or the state order, since it is the only
institution that can stop an unconstitutional law. 1he Constitutional Court is responsible or laws
respecting the constitutional law and or the saeguarding o the constitutional rights o the public
and indiiduals. As it will be seen in this paper, the Court has been explicitly or implicitly recognizing
that the limits and the content o the constitutional law are no longer as clear as they were in the past.
lurthermore, some decisions stated that politicians can and ha/e to search for and ealuate - without
the need o a judicial interention - the most useul means to achiee their politically established goals
,cr. BVerG, Decision o 5
th
lebruary 2004 - 2 BR 2029,01 -, in the ollowing: BVerGL 109,
133,. 1he problem is that in the last years security` seems to be the main goal, and in order to seek
security all means seem to be acceptable - een or the Constitutional Court.
4
On the current situation o this legal measure see infra note 50.
5
1he concept was irst used in the ield o preention o dangers ,Geahrenabwehr, and o war on
terrorism ,see /on Denkowski 200,. Neertheless in these ields the term was present only in police
,crit. (hiede 2008, /on Denkowski 2008, and political discourses, but not in law texts. 1he discussion
around this term was sparked by an interiew o the lome Oice Minister \olgang Schuble in the
weekly journal Der Spiege-, Nr. 28 o 9
th
July 200. Schuble has been clamouring or years or radical
changes in the orm and goals o law-making policies. 1he deence o the public against terrorism
and the surial o the constitutional state against the background o global non-democratic threats
were suicient reasons or changes`. 1hese changes included among others the expansion o police
powers, an increased number o military interentions, the shooting down o ciil airplanes
kidnapped by terrorists, practicing targeted-killings o high-risk-suspects, etc. According to Schuble,
this is a necessary constitutional expansion as 1he old categories do not match any more` ,p. 36,.
le proposes a re-deining o the so called red line`: (he red -ine is /er0 eas0; 1t is a-wa0s defined A0
constitutiona- -awE which of course can Ae 'odified" 9 proposa- for the 'odification of constitutiona- -aw is not an
assau-t upon the constitution" (o 'eE the fortification of the pre/enti/e idea signifies the fortification of the constitutionE
Aecause it pro/ides confidence to the peop-e"S ,p. 36,. lor a detailed analysis o this interiew see %&h' 2008:
25 et se:" 1he proposed amendment or the reinterpretation o the Constitution proposed by Schuble
in order to be able to go urther with the war on terror sounds ery complicated. loweer, this is
exactly what the Parliament has been doing and what the Constitutional Court has been accepting in
its decisions - not only regarding the war on terror, but also many other criminal areas such as sexual
crimes and economic crimes analyzed in this paper.
Lndanger Law: \ar on Risks in German Criminal Law

14
the national security because o their religious or national background, because o
their relationship with suspects o terrorism actiities, etc.
6
It is argued, that it is
necessary to get as much inormation as possible about them in order to know and
to preent each possible uture step: Inestigation measures became more lexible
,or example sureillance, data mining, etc.,, while the orms o indiidual
interention ,or example detention or interrogation, became more intense.
7
1he
igure o an endangerer, howeer, is constructed not only in the anti-terrorism
domain. 1he organized crime`, or example, and een sexual and iolent oenders
hae been redeined - not expressiely but implicitly - as endangerers through law
amendments or at least the last ten years. 1hey are seen as high-risk igures
jeopardizing general security. lor a better understanding o these ideas, in the
ollowing section the notion o risk will be explained which may conceptually
explain how endangerers are constructed - een implicitly - in legal discourse.
III6 R(s:
A useul way to introduce the concept o risk is by talking about the risk societ0.
According to .-rich %eck the risk society is a result or urther deelopment o the
modernisation process.
8
1he risks created by the risk society in the most adanced
stage o deelopment o the orces o production
9
are systematically conditioned,
oten irreersible, or the most part inisible and based on causal interpretations,
i.e. dependant on knowledge and thereore particularly open or social deinition
processes.
10
Risks will only become such when they are socially acknowledged and
allocated.

6
As was deined by the Group o the Leaders o State Bureaus o Crime and the lederal Bureau o
Crime ,9rAeitsge'einschaft der #eiter der #andeskri'ina-K'ter und des %undeskri'ina-a'te B AG Kripo, on
the 21
st
Noember 2006 ,in the ollowing: B1-Drs. 16,350,, p. 6, Question 9: An endangerer is a
person with regard to whom some acts justiy the assumption that she or he is going to commit
politically motiated serious crimes, in particular those related to 100a o the Procedural Code`
,Lin Gehrder ist eine Person, bei der bestimmte 1atsachen die Annahme rechtertigen, dass sie
politisch motiierte Strataten on erheblicher Bedeutung, insbesondere solche im Sinne des 100a
der Straprozessordnung ,StPO,, begehen wird.,,. A person can be classiied as an endangerer een
without haing committed or haing intended to commit a crime. According to the Secretary o
State, or the deinition o the concept legal undaments were not necessary` ,nicht erorderlich`,
,B1-Drs. 16,350, p. 6, Question 10,.
lor instance in a new Act regulating the collection o data on high dangerous persons` ,Geset= =ur
Errichtung ge'einsa'er Dateien /on 2o-i=eiAeh&rden und ,achrichtendiensten des %undes und der #Knder
)Ge'einsa'eBDateienBGeset=* om >>" De=e'Aer >77? ,BGBl. I 66, p. 3409, it is proided that this
inormation may be collected and recorded in secrecy. No crime commission or intended crime
commission is necessary or that. Cr. /on Denkowski 200: 325 et seq.
8
%eck 1986. See also the actualization o his concepts in %eck 2000.
9
%eck 1986: 26.
10
%eck 1986: 30, see also on the diersity o possible risk deinitions according to him id", p. 40 et se:"
Mara Laura Bohm

148
As a particular way in which problems are iewed or imagined` and dealt with.
|.[ Risk is a statistical and probabilistic technique, whereby large numbers o
eents are sorted into a distribution, and the distribution in turn is used as a
means o making probabilistic predictions.
11

lrom a criminal law perspectie two aspects are o particular interest: First-0, the
need to deine risk and danger more precisely or rather to delineate one rom the
other, second-0, the problem o the chronological dimension o the risk concept, as
risks are, in respect to time, at the same time rea- and unrea-S
12
, and third-0 the
reormulations that these aspects bring or imply within the discourse o criminal
law.
1. Risk and danger
It is to be noted at this point or a preliminary delineation that risks and
respectiely risk actors are undamentally dierent rom danger. 1hat is to say
danger can always be traced back to a causatie eent, capable o causing damage,
which can be o human nature but doesn't hae to be. lor the dangers caused by
humans it can be said that the subject, who has caused the danger, is just as little in
the position to successully shield the releance o damage as third persons.
Dangers, thereore, always remain unoreseeable and uncontrollable.
13
Risks, on
the other hand, don't result rom causatie but rom probabilistic imputation, i.e.
damage is imputed through ,or example, an actuarial approach.
14
A risk thereore
is a melange situation, which is seen as potentially, partly responsible harmul
actor - because perceied, constructed, socially 'passed on' or or whateer
reason
15
- and thereore has to be preentatiely set aside.

11
8J!a--e0 2008: 5. lor urther reading on Risk rom the go/ern'enta-it0 perspectie see Don=e-ot
199, Ewa-d 1986, Ewa-d 1991, Defert 1991, Caste- 1983, Kras'ann 2003: 108 et se:"
12
%eck 1986: 44 ,wirklich und unwirklich`,.
13
Kras'ann 2003: 112.
14
Cr. Fee-e0HSi'on 1992, passi', Fee-e0HSi'on 1994: 13 ,It is actuarial. It is concerned with
techniques or identiying, classiying and managing groups assorted by leels o dangerousness. It
takes crime or granted. It accepts deiance as normal. It is sceptical that liberal interentionist crime
control strategies do or can make a dierence. 1hus its aim is not to interene in indiiduals` lies or
the purpose o ascertaining responsibility, making the guilty pay or their crime` or changing them.
Rather it seeks to regulate groups as part o a strategy o managing danger.`,.
15
lor a detailled analysis o the dierent sociological constructions and approaches to risk see Ginn
2008: 8 et se:", who present the dierences between authors and theories and oers ollowing
classiication o risk ideas - starting with the most concrete iew o risk and increasing in the grade o
abstraction and social construction attributed to this concept by the theorists, risk is dierentially
deined by them as a, real and objectie`, b, as subjectiely biased`, c, as socially mediated`, d, as
socially transormed`, e, as real and socially constructed`, or , as socially constructed`.

149
. the notion o risk is made autonomous rom that o danger. A risk does not
arise rom the presence o particular precise danger embodied in a concrete
indiidual or group. It is the eect o a combination o abstract actors which
render more or less probable the occurrence o undesirable modes o behaiour.
|...[ 1he presence o some, or o a certain number, o these actors o risk sets o
an automatic alert.
16

Risks are attributed because o a lack o physical, causatie reason and aim to
preent uture - potential - damage. Risks are thus conceptionally calculable and
controllable.
17

2. 1he chronological dimension o risk
1he damage, which illustrates the concretion o risks, stands in an uncertain uture,
their causes, howeer, are being determined at present. Lerywhere, whereupon
the 'guilt-seeking' spotlight alls`
18
existing actions become the cause o uture
damage, i.e. they become risks`. loweer, those causes are immediately - and
causatiely seen - neither as such nor under any circumstances damaging, this
makes their penal recordal in iew o attribution and legally protected interests o
criminal law undamentally problematic. lurthermore, those causes are something
constructed by interpretation which in turn implicates a problem when looking at
it rom the aspect o action and their causation within the meaning o criminal law.
Risk discourse is uture oriented. Risk rationalities and the technologies in which
they are embedded bring imagined utures to the present.`
19
Risk actors are not as
closely linked with consequences o damage as certain ,illicit, dangerous actions.
Instead, they are deined objectiely based on the deliberation o probability.
20

Len i one does not want to go so ar to say that risk actors are socially
constructed, one can nonetheless not oerlook the act that preentie orientated
politics de-construct the concrete subject o interention, and reconstruct a
combination o actors liable to produce risk. 1heir primary aim is not to conront
a concrete dangerous situation, but to anticipate all the possible orms o irruption
o danger`.
21
lereby, to be suspected, it is no longer necessary to maniest
symptoms o dangerousness or abnormality, it is enough to display whateer
characteristics the specialists responsible or the deinition o preentie policy
hae constituted as risk actors`.
22
lere, goernmental thinking oerlaps with the
perspectie o actuaria- justice" 1he importance o attribution processes also clearly

16
Caste- 1983: 59.
1
Cr. #uh'ann 1991, passi', Ginn 2008: , Kras'ann 2003: 112 et se:"
18
%eck 1986: 44.
19
Lricson,laggerty 2001: 8.
20
In this respect the opinion o theorists o the risk society` is deeply diided. See supra note 15.
21
Caste- 1983: 61
22
Caste- 1983: 59
Mara Laura Bohm

150
stands out, i one understands the concept o risk as system-theoretical in the sense
o Niklas Luhmann, and risks as a result o the process o decision-making and
attribution o responsibility or those decisions. 1he deelopment o risks,
thereore, depends directly on whether damage is assumed to be the primary or
secondary eect o certain decisions and who they are attributed to, or whether
they are seen as concretised dangers without being able to be attributed to anyone:
Accordingly, making a decision and attributing its uncertain consequences to this
decision implies risk. In contrast, negatie eects regarded as caused by external
eents are mere dangers. In other words, the distinction between risk and danger
does not reer to dierences in certainty, but to a dierence in attribution. |.[
Instead o assuming a ,possible increasing, number o objectiely gien
risks,dangers |.[,

|this careul separation o the terms risk` and danger`[ makes
clear that whether we regard something as a risk is a matter o attribution.
23

I something or somebody is seen as a risk this classiication implies that this
subject was able to choose between an action or situation with a possible damaging
outcome and a completely harmless action or situation. On the other side, to say
that something or somebody is dangerous stresses the responsibility o actions and
situations with possible damaging consequences outside the choices o this subject.
Len though in these cases where there are not damaging results, the possiAi-it0 o
these results is enough reason to attribute responsibility to the risky subject in the
irst case - but not in the second.
3. Reormulations in criminal law
I one realises, that criminal justice normally operates in iew o indiidual
imputable damage or rather risk causation, it is clear that the opening up o
criminal law and criminal justice to the needs o risk management would entail a
signiicant modiication o the well known ramework o criminal law principles
and logic:
First o all, the person as the addressee o the criminal law would be perceied in
an entirely dierent way by the criminal law. I we think that in a new risk-
approach there is no longer a subject`,
24
ormer personal categories were lost.
1he conrontation o the delinquent with a concept o a person which
accentuates the indiidual responsibility and excludes all other circumstances and
conditions, admittedly risks passing into nothingness`
25
and likewise the creation
o a liberal modern criminal law and its addressees, its doctrine o culpability, its
categories o crime and its legally protected interests. 1he criminal law oriented by
risk categories and inspired by the risk logic would be an extensie de-

23
appHKusche 2008: 88.
24
Caste- 1983: 61
25
Gnther 2002: 135. On the de-in:uentR as a ading category o knowledge see also Scheerer 1998.

151
personalised law`
26
and its objects would be risk groups o persons. 1his
perception would be deerred by a combat o risks by the criminal law, or persons
,de-personalised`, would thus be considered a risk because o certain traits o
their character, because o nationality or religion, because o type o riendships or
rareness, or een because o a certain way to be ,their being that way`,, which
would ultimately abolish the distinction between the oender and the oence.
Second-0, the traditional concept o a hu'an act in criminal law would hae to be
replaced by a ocus on risk actors which are not per se determined by acts. Lither
because in a risk society criminal law would ,in the sense o actuaria- justice* operate
against T objectiely assessed T risk actors ,and not against actions, or because
risk structures ,independent o actions, wou-d Ae defined and prosecuted A0 cri'ina- -aw"
Both cases are about the preention o uture damage through the prohibition o
risks, which hae been determined by actuarial assessment and political deinition,
respectiely.
(hird-0, criminal law would with regard to its te'pora- app-ication turn around,
because it would interene with a iew into the uture and not regarding the past -
because o a committed or attempted act. 1his would happen through the
punishment o pseudo-causes`, which could potentia--0 cause uture damage -
probabilistic and not causatiely iewed - i.e. through the logic o uture-orientated
interention, which has no actual proo, but - sti-- - unrea- uture scenarios as a
basis.
27
Because these risk deinitions are contingent and ariable, this would een
be a matter o law limited in time.
Fourth-0, the i'putation in criminal law, which rests on causality and personal
responsibility, would be reormulated by probabilistic objectie risk logic, because
there would be no directly identiiable causality, but rather an objectie diagnosis-
like attribution o potential uture damage, mediated by probabilistic calculations.
1his would in particular entail the punishment o unintended side-eects.
All these possible changes in the logic and unctioning o the criminal law are
not only speculations about uture scenarios. In the current discourse o the
criminal law in Germany all these reormulations are taking place. Addresses are
constructed as risks. Len urthermore, they are not being constructed and
managed as risks but rather constructed as risks and ought against as enemies.
1he conceptual relationship between the war on an enemy and the punishment
o a criminal is an old topic in criminal law and criminology, so it is not necessary
to urther discuss this issue.
28
Neertheless, regarding the understanding o the
current endanger law, it is necessary to stress that since about ten years discussions

26
Wo-f 198: 390 ,weitgehendes entpersonalisiertes Recht,. See also Kras'ann 2003: 120, 23 et se:",
Fee-e0HSi'on 1992 and 1994.
2
See on the technique o horror scenaries` 8pit=H(e--'ann 2009, passi', who explain its unctioning
in preentie and precautionary systems.
28
lor an historical oeriew o the relationship between war and crime see a'ieson 1998, on
criminalization as a useul instrument or political and legal power enorcement see Christie 1986, who
criticizes that criminals are suitable enemies` or the State, or a critical analysis o the similar
eatures o war and criminal law in law and order` policies see Steinert 1998 ,in particular p. 418,.
Mara Laura Bohm

152
concerning the relationship between war and criminal law hae become requent.
It has been een explicitly ormulated, theorized and proposed by the German
scholar Gnther akoAsE who is in aor o an enemy criminal law` or an enemy
penalty` ,leindstrarecht`,.
29
According to this approach there are some
indiiduals who cannot be seen as persons`,
30
they are not citizens anymore and
must be excluded rom society because they represent a social menace.
31
1he
criminal law has to apply dierent rules to these enemies such as the orward
displacement o punishability without reducing punishment in spite o this
displacement, rights and guarantees are reduced or een denied, and the criminal
legislation becomes war legislation.
32
1hese indiiduals do not hae to be punished
by the criminal system, but to be ought against as enemies.
33
1he proposal o
akoAs is, according to him, a real - and not ideal - way to deal with the limits o
law.
34
1his reality can be obsered within the goernment and the legislation,
which are currently acting according to these ideas. lurthermore, I contend that
these ideas are being combined with the logic o risk. 1hus, criminal law becomes
broader because o the diersity o risk constructions, and more aggressie because
o the war logic. Risky igures being ought against as enemies is a current logic in
the discourse and practice o criminal law in Germany.
IV6 C-&&ent 'onst&-'t(ons le)(t(*ate5 b. t+e Const(t-t(onal
Co-&t of e&*an.
1aking the explained risk concept as a theoretical ramework and haing shortly
presented the idea o an enemy penalty introduced within German criminal law, it
is now releant to reer the endangerer in Germany`s criminal law constructions,
who shows the reality o criminal law when the discourses o risk and o war
merge. It has been claimed by politicians, parliamentarians and judges that it is
necessary to deprie risk0 figures o their rights ,priacy, reedom, een beore their
potentially harmul risky status turns into concrete damaging situations. As a
consequence, the idea o an endangerer is present in a non-written orm in the
parliamentary discourse as well as in the discourse o the Bundeserassungsgericht
,the Constitutional Court o Germany,. 1he two constructed measures o the
criminal system which will be presented in the ollowing section are the acoustic
home sureillance and the supplementary preentie detention.

29
akoAs 2000: passi'.
30
akoAs 2000: 53, 2004: 90 et se:"
31
akoAs 2000: 51.
32
akoAs 2000: 51 et seq.
33
akoAs 2004: 90.
34
akoAs 2006: 289.

153
1. Acoustic lome Sureillance
1he acoustic ho'e sur/ei--ance - akustische Wohnrau'Aerwachung - is an ,alleged
exceptional, procedural measure consisting o the secret hearing o conersations
held by a suspect, by his relaties or by anybody staying in his priate premises.
1he objectie is to obtain eidence in criminal pre-trials related to organized
crime` and, aboe all, to get inormation about the network structures`.
35

Interestingly, Germany does not hae a codiied oence or organized crime` in its
Criminal Code. lence, parliamentarians had to introduce a long list o oences,
which may be related to organized crime`.
36
1he list contains more than one
hundred oences or which it is possible to carry out the acoustic home
sureillance. 1he asserted exceptionality o the measure, thereore, is not really an
exception.
1his amendment was introduced into the Code o Criminal Procedure in
1998.
37
An amendment to Article 13 o the lederal Constitution was also essential,
since this article establishes the iniolability o home space.
38
In 2004 the
Bundeserassungsgericht declared the constitutional amendment as according to
the Constitution since it did not iolate the eternity clausel` established in Article
9 ,para. 3, o the Constitution in order to aoid amendments which could abolish

35
Amendment Drat, B1-Drs. 15,4533, p. 2. Cr. also Bundestag, Plenary Session o 21
st
January
2005 ,in the ollowing: B1-Session 15,152,, p. 14291.
36
1he quasi-oicial deinition o organized crime` adopted in Germany is not a legal deinition, but
an instrumental concept or criminal policy. According to this deinition Organised crime
constitutes the planned commission o criminal oences drien by the question o acquiring proits
or powers. Such criminal oences hae to inole the cooperation o more than two participants
acting or a longer or indeinite period o time on a distributed-task basis by utilization o commercial
or business-like structures, or by application o iolence o other methods suitable or achieing
intimidation, or by exerting inluence on politics, the media, public administrations, justice systems,
or commerce` ,Line on Gewinnstreben bestimmte planm|ige Begehung on Strataten durch
mehrere Beteiligte zu erstehen, die au lngere oder unbestimmte Dauer arbeitsteilig - unter
Verwendung gewerblicher oder geschtshnlicher Strukturen, - unter Anwendung on Gewalt oder
anderer zur Linschchterung geeigneter Mittel, oder - unter dem Bemhen au Politik, Medien,
oentliche Verwaltung, Justiz oder \irtschat Linlu| zu nehmen, zusammenwirken.,, see Geset= =ur
%ekK'pfung der 8rganisierten Kri'ina-itKtE Bundesgesetzblatt I 1302, 15.0.1992 - B1-Drs. 12,989 -, p.
24,. See or urther critical iews o the imprecision o this deinition !o=ek 2001: 61, #isken 1994:
264, see also or a critical analysis o this deinition as a political instrument FernUnde= Steinko 2008: 61
et se:"
3
Geset= =ur Vnderung des 9rts" 6C GG o 26
th
March 1998 ,BGBl I 98, 610,
38
See the current ersion o Article 13 o the German Constitution. Ater establishing the
iniolability o home space ,para. 1, the article explains the exception or example or acoustic home
sureillance ,para. 3,: H1I 1he home is iniolable. ,., H$I I particular acts justiy the suspicion that
any person has committed an especially serious crime speciically deined by a law, technical means o
acoustical sureillance o any home in which the suspect is supposedly staying may be employed
pursuant to judicial order or the purpose o prosecuting the oence, proided that alternatie
methods o inestigating the matter would be disproportionately diicult or unproductie. 1he
authorisation shall be or a limited time. 1he order shall be issued by a panel composed o three
judges. \hen time is o the essence, it may also be issued by a single judge.` ,http:,,www.gesetze-
im-internet.de,englisch_gg,englisch_gg.html4GGengl_000P13, last isited on 24
th
January 2011,.
Mara Laura Bohm

154
some o the undamental constitutional rights.
39
1he Constitutional Court
understood that the acoustic home sureillance is not unconstitutional i it does
not iolate the inti'it0 sphere o the sureilled indiiduals.
40
1hus, the Court reached
satisaction by demanding more restrictie rules or the eectie implementation
o the measure. 1he parameters proided by the Court, howeer, were ound
unrealistic by scholars and practitioners: I the rules are ollowed, the sureillance
becomes impossible, i any sureillance is done, these rules are instantaneously
broken and the sureillance becomes automatically unconstitutional.
41

loweer, it is more important to point out that within the Bundestag
42
and
the Constitutional Court the question o what exactly organized crime` is remained
open.
43
Neertheless, both institutions airmed that this procedural measure was
utterly necessary in order to inestigate and to aoid the danger that the organized
crime` represents or the national and general security. 1he national security, it was
argued, is at stake and must be deended through the lexibilization and the more
intense interention o the criminal procedure. Organized crime` would not be a
usual criminal igure, but an inisible shapeless high-risk phenomenon challenging
the traditional criminal system and the Rechtsstaat.
44

2. Subsequent incapacitation order
1he suAse:uent incapacitation order ,nachtrKg-iche Sicherungs/erwahrung, is an ensuring
measure addressed to those who were conicted to prison because o sexual or
high iolent crimes. 1his measure was originally designed by the States o Baaria
and Saxony-Anhalt.
45
1he Bundeserassungsgericht ound these concrete
exceptional laws unconstitutional because o a lack o jurisdiction to release these
acts, but announced the constitutionality o the idea. 1he Court proposed this
measure to the Bundestag in 2004 in order to legally sole the exceptional situation
o some speciic detainees who had sered their sentences, but whom the
respectie States did not consider appropriate to release because o their orecasted
dangerousness`.
46
1hus, ollowing the order`
47
o the Constitutional Court, the

39
BVerG, Decision o 3
rd
March 2004 - 1 BR 238,98, 1084,99 - ,in the ollowing: BVerGL
109, 29,.
40
On the spheres theory` ,in time sphere which cannot be iolated by the state, priate sphere
where the state can interene in some cases, and social sphere which is open to state and public
interention, and its application to this case see Warntjen 200: 48 et se:"
41
Bundestag, Plenary Session 12.05.2005 ,in the ollowing: B1-Session 15,15,, p. 16456. See also
Haas 2004: 3083.
42
Cr. Bundestag, Plenary Session 9.10.199 ,in the ollowing: B1-Session 13,19,, p. 1692,
Bundestag, Plenary Session 16.01.1998 ,in the ollowing: B1-Session 13,214,.
43
BVerG 109, 29, p. 338 et se:"
44
B1-Session 13,19, pp. 1699, 104, B1-Session 13,214, pp. 19524, 19536.
45
See the drats and discussions o these states as well as on the nature these states recognized to this
measure ,police emergency measures, %ender 200, p. 26 et se:.
46
BVerG, Decision o 10
th
lebruary 2004 - 2 BR 834, 1588,02 ,in the ollowing: BVerGL 109,
190,.

155
Bundestag discussed and amended the ederal Criminal Code in 2004
48
and made it
legally possible to proe shortly beore the prisoner is going to be released
,probably ater years o imprisonment, i he represents a high risk` or the
general security
49
- i he does, he has to stay in jail or an undetermined amount o
time -.
50

Many actors could lead to the order o this measure: the behaior in prison,
the relationship to prison oicers, the seriousness o the original crime ,which
probably occurred many years ago,, the willingness o the prisoner to participate in
therapy programs, etc.
51
1hat means that there is not a direct relation between a
crime and the order o the subsequent incapacitation order nor between the
maniested personality o the oender in occasion o the crime and the subsequent
order o the measure.
52
1hereore, the prognosis or orecast is based exclusiely on

4
Bundestag, Plenary Session 25.03.2004 ,B1-Session 15,100,, p. 8995, Bundestag, Plenary Session
18.06.2004 ,in the ollowing: B1-Session 15,115,, pp. 10553, 10558 et se:" Also critical with the
attitude o the Court #auAentha- 2004: 44, Kin=ig 2008: 48, !ushoff 2008: 40
48
Gesetz zur Linhrung der nachtrglichen Sicherungserwahrung o 23
rd
July 2004 ,BGBl. I, p.
1838,.
49
See ,Section, 66b SuAse:uent incapacitation order introduced to the Criminal Code ,StGB,: ,1, I
prior to the end o a term o imprisonment imposed on coniction or a elony against lie and limb,
personal reedom or sexual sel-determination, or a elony pursuant to section 250 and section 251,
also in conjunction with section 252 or section 255, or or one o the misdemeanours in section 66
,3, 1st sentence, eidence comes to light which indicates that the conicted person presents a
signiicant danger to the general public, the court may subsequently make an incapacitation order i a
comprehensie ealuation o the conicted person, his oences and his deelopment in custody
indicate a high likelihood o his committing serious oences resulting in seriously emotional trauma
or physical injury to the ictim and i the remaining conditions in section 66 are ulilled. I making
the order at the time o coniction was impossible under law, the court shall, or the purpose o the
1st sentence o this subsection, also take into account any acts that were already eident at that
time.` ,http:,,www.gesetze-im-internet.de,englisch_stgb,englisch_stgb.html4StGBengl_000P66b,
last isited on 24
th
January 2011,
50
1he Luropean Court o luman Rights ,LClR, has condemned Germany because o the
retroactie application o an amendment which cancelled the 10 year limit o incapacitation ,LClR,
!" /" Ger'an0E Decision 1.12.2009, Nr. 19359,04, in the ollowing: LClRE !" /" Ger'an0,. In this
sense, the subsequent incapacitation order may also iolate Art. 5 ,1,,a, ,restriction o liberty
according to the decision o a responsible tribunal, and Art. ,principle o non retroactiity, o the
Luropean Conention on luman Rights. In the case o the subsequent incapacitation order the
indiidual is being ,urther, incarcerated on the basis o acts not related to his ormer crime and this
decision is being applied - in the case o the indiiduals who were already in prison beore the law
was amended - iolating the prohibition o retroactiity o criminal law ,nr. 88, 105, 120, 132 et se:" o
the decision,. See comments on this decision in H"E" !--er 2010, passim, GraAenwarter 2010, passim,
#aue 2010, passim, !erke- 2010: 1060 et se:", Kin=ig 2010: 238 et se:" lollowing the decision o the
LClR, Germany amended last December the Criminal Code and suppressed the general disposition
or the subsequent incapacitation order ,Geset= =ur ,euordnung des Rechts der Sicherungs/erwahrung und =u
Aeg-eitenden Rege-ungen /o' >>" 6>" >767 ,BGBl. I S. 2300,,, since 1
st
January 2011 it is only possible to
order this subsequently incapacitation in cases o internment in psychiatrical institutions and in
relation to ery serious crimes. 1his last amendment was orced by a decision o the LClR, meaning
that the internal logic o the measure was not reisited because o criminal principles or because o
principles o the Rechtsstaat, but only as a consequence o the interention o human rights parameters
imposed by the Luropean Court. lor this reason, this paper`s analysis still concentrates in the
criminal discourse o the subsequent incapacitation order, which is actually not really oercame yet.
51
BVerGL 109, 133, p. 161 et se:", see also .--enAruch 200: 62 et se:"
52
See also LClRE !" /" Ger'an0, nr. 88. See crit. also %&--ingerH2o--Khne ,2010: 2154 - Rn. -
decoupling` ,Lntkoppelung,,, Schneider 2006: 99 ,the incapacitation was decoupled`
Mara Laura Bohm

156
the conduct o the prisoner in jail and not directly related to a crime - and this act
represents the main dierence between the common incapacitation and the
suAse:uent incapacitation.
Some sexual oenders are een seen and classiied by the Constitutional Court
as bundles o risks`,
53
who are unable to come back to society. 1heir suAject-
quality is put aside and only the sum o attributed risk actors is justiying the
incapacitation - without direct bound to a new crime or new criminal
circumstances -.
54
1he oered argument is that these indiiduals would endanger
the general security. 1hat is, it is argued by politicians and judges, many risk actors
as possible should be taken into account and security measures as strong as
possible hae to be adopted in order to aoid any possible uture damage.
55

V6 JEn5an)e&7
\ith these disposities the criminal law becomes endanger law, which is broader
and more aggressie in terms o its interention strategies. Its unction is no longer
prosecuting and punishing crime and criminals, but dealing with the projection o
high-risks and, subsequently, stopping subjects and phenomena as the organized
crime` which endanger the security. 1he logic o the risk management explained in
the irst part o the paper and its combination with the idea o war on crime - as
well as the idea o the criminal as an enemy -, can be seen in the mentioned
examples, in which neither solely management o risk nor just war on enemies, but
actually a complex war on risks is being carried out.
1he criminal law acting in this war on risks is what is here called endanger law
whose working process can be summarized as ollows:
First-0, the forecast of each possiA-e future da'age for the genera- securit0 is represented -
such as corruption, parallel economy, gangs ighting prooked by the organized
crime`, iolent and,or sexual crimes to be committed by already conicted
subjects etc.
Second-0, re-e/ant risk patterns for each area are designed )constructed* - or example in
the case o the organized crime` the risk actors are nationality, religion, spoken
language, circle o riends, occupation among other, in the case o sexual and high
iolent criminality patterns are constructed taking into account the quality o the
committed crimes, the eeryday behaior o inmates in prison, their relationship
with custody personal, etc.
(hird-0, there is -ega- inter/ention )A0 'eans of an a--eged e+ceptiona- -aw* in order to
neutra-i=e these risks and in this way the right to home priacy and the right to

,abgekoppelt, rom the original oence,, #auAentha- 2004 ,deiation o the |.[ character o the
incapacitation as a direct legal consequence o the original oence ,Abkehr on dem |.[
Charakter der Sicherungserwahrung als einer unmittelbaren Rechtsolge der Anlasstat,, p. 41,.
53
BVerGL 109, 133, p. 158. 1he 1ribunal reers itsel to the undaments o the legislator.
54
See supra note 52.
55
Cr. Drat CDU,CSU ,B1-Drs. 15,256,, p. , BVerGL 109, 133, pp. 159, 14.

15
reedom were repealed in order to enable the criminal system to proceed in cases
without cri'e in which the only aim is to aoid that damages occur. lere, the idea o
Minority Report oers an extraordinary illustration: In the ilm uture crimes are
orecasted by rare creatures and a special police unit interenes immediately ater
these creatures fee- the crime coming and gie their alert. 1he preentie
interention consists in neutralizing, arresting and punishing people who did not
commit any crime. In this way, predictions and interentions are immediately
related. Causal chains are not releant - there is no action, no crime, and no
damaging or endangering conduct! 1hey are irreleant because risk is not cause, but
the adscription o the responsibility or uture possibilities.
56

Fourth-0, endangeringS factors and suAjects are e+c-uded" 1he exercise o procedural
rights and the alidity o legal principles are denied to them ,principle o non
retroactiity o criminal law,
57
principle o certainty o criminal law
58
,, they are also
excluded rom the society discursiely ,organized crime`, and physically
,incapacitation, as well as excluded rom the general common legal apparatus
which usually protects citizens and inhabitants o a country. Lndangerers` as
organized crime` or high risky sexual oenders` are not seen as law-subjects
anymore. 1hey are perceied neither as common citizens nor as usual criminals,
but as ho'o insecuritas - that means, constructed as the opposite o the general
security.
VI6 C&(t('al &e*a&:s
I would like to point out shortly that many aspects o the endanger law are not
really new. I we look at the work o Wa-ter %enja'inE
59
we will ind the iolent and
police-like ,without distance, character o law, which we also see in the immediate
interention and decision o home acoustic sureillance
60
and o supplementary
preentie detention.
61
1he impossibility o justice in the law enorcement` was
also suiciently analyzed by ac:ues Derrida, who - critically - recalled that is is

56
See supra note 1 et se:" and main text.
5
Crit. also Kin=ig 2006: 155, %&--ingerH2o--Khne ,2010: 2154 - Rn. -,, see the ery important decision
o LClRE !" /" Ger'an0, nr. 120, 132 et se:"
58
See crit. also %&--ingerH2o--Khne ,2010: 2154 - Rn. -,, Finger ,2008: 13 et se:",, !ushoff 2008: 446 et
se:"
59
%enja'in 1965.
60
1he decision to hear the conersation or not, and whether to record it or not, must be done at the
moment that the police suppose people at home are talking about crimes, not beore that, and not
ater. lor this reason it is necessary to carry out sureillance -i/e" 1his immediate method was required
by the Constitutional Court and ound impossible by practitioners ,B1-Session 15,152, p. 14291,.
See also supra note 41 and main text.
61
1he alert` about the risk-actors that the prisoner represents is gien by the prison oicers, which
are locally and temporarily immediate to him and cannot be neutral to his situation. In the same
sense, the law itsel was decided or immediate situations and to aoid the release o eight concrete
prisoners. 1he law, as seen, was rapidly written to sole these concrete cases ,B1-Session 15,115, p.
10555,.
Mara Laura Bohm

158
necessary or the law to apply force i it is to be truly alid.
62
1he indetermination
and agueness o the law that does not exactly deal with particular acts but with no
clear deined limits between nor'a-it0 and anor'a-it0 was largely discussed by !iche-
Foucau-t.
63
Moreoer, he situated this question in the wider ramework o the
relations o power and conincingly explained the role o the law as an instrument
within the ield o strategic power struggles. 1he legal legitimization o iolence by
claiming an exceptional situation seems to be part o this law rationality.
Nowadays, says Giorgio 9ga'Aen, these exceptions seem to hae become the rule
64

and other also point out that exceptions are nothing but extensions o the
norm.
65
In the cases analyzed here the exception was the initial argument which
later lowed through ery legal and ery common ways into the normal rule: the
emergency incapacitation laws designed to aoid the release o eight prisoners
became part o the ederal law o the Bundestag changing the Criminal Code, while
the exceptional sureillance measure o the secret serices became a common
procedural measure able to be applied in all cases related to organized crime`, that
means, in the inestigation o around one hundred dierent crime orms. 1aking
all these critical thinkers into consideration, the endanger law seems to not be so
innoatie ater all.
1oday the unctioning and internal logic o the law, howeer, is een more
isible and less principled than a couple o decades ago. 1he modern German law
is being reormulated.
66

1his modern law is being reedited according to the current rationa-it0 of risk: law
as an instrument o olatile risk management is aimed at the orecast o each
possible uture damage or the general security. At the same time, this modern law
is being reedited according to the current rationa-it0 of war: law as a means or
aggressie ighting and or neutralizing aceless enemies o the general security
while arguing the exceptionality o the measure.
Risk management and war ighting merge. Not just risk management, but
ighting, not just war to the enemy, but multiple constructions o possible
endangerers` by means o risk calculation.
Older law logics are being brought up today: As seen, the immediacy, the
iolence, the agueness and the exceptionality o law are immanent to the internal

62
Derrida 1991:12 et se:., and passi'.
63
Foucau-t 19: 15, Foucau-t 2005: 23.
64
9ga'Aen 2002: 130, 9ga'Aen 2004: 9, 41. ,Die unmittelbar biopolitische Bedeutung des
Ausnahmezustands als einer ursprnglichen Struktur, in der das Recht durch seine eigene
Suspendierung das Lebendige in sich schlie|t, kommt in aller Klarheit durch die 'i-itar0 order zum
Vorschein, die der Prsident der Vereinigten Staaten am 13. Noember 2001 erlassen hat. Danach ist
bei Nicht-Staatsbrgern, die terroristischer 1aten erdchtigt werden, unbeschrnkte lat ,indefinite
detention, und ein Proze| or 'i-itar0 co''issions erlaubt ,die nicht mit Militrgerichten zu
erwechseln sind, wie sie das Kriegsrecht orsieht, 2004: 9,.
65
8jakangas 2005: 16.
66
1hat is the criminal law inspired by illustrated ideals and applied in the German Rechtsstaat in
particular ater 1945, including the more pragmatic streams o preentie criminal law. lor a short
reiew o illustrated and modern criminal law see 9rno-d 2006.

159
logic o modern law. 1he endanger law, thereore, is neither a pre-modern nor an
anti-modern law. It is rather a maniestation o modern law reormulated to it the
challenges o the XXI century and its security obsession: endanger law is the
instrumental law o the securiti=ed times, in which there are again and again social
issues which become o political releance and ater that are een declared as
existential questions or the national security.
67
In the cases o the subsequent
incapacitation order and o the acoustic home sureillance the securitization o the
questions organized crime` and sexual criminality` hae een reached high leels
o nor'a-i=ation in the criminal law: they were written in the lederal Constitution
ollowing the rule o law and were een promoted by the
Bundeserassungsgericht.
Limiting the endanger law, I suggest, will only be possible ater starting to
recognize the internal components o law and to rethink the unction o criminal
law entirely. 1he war on risks may sound ery innoatie, but it is not a alid legal
solution to the insecurity. 1he means-end bound between criminal law as a means
and security as an end must be deinitiely eradicated. 1his eradication, howeer,
should not be expected rom the side o the constitutional and legal principles and
actors. 1hese constitutional and legal principles and actors, as seen, hae been
iniltrated and perormed by securitization-streams as well.
Refe&en'es
Agamben, Giorgio 2002: Ho'o Sacer. Die sou/erKne !acht und das nackte #eAen,
lrankurt a.M.: Suhrkamp
Agamben, Giorgio 2004: 9usnah'e=ustand, lrankurt a.M.: Suhrkamp
Beck, Ulrich 1986: Risikogesellschat. 9uf de' Weg in eine andere !oderne, lrankurt
a.M.: Suhrkamp
Beck, Ulrich 2000: Risk Society Reisited: 1heory, Politics and Research
Programmes, in: Adam, Barbara,Beck, Ulrich,Van Loon, Joost ,Ld.,: (he Risk
Societ0 and %e0ond" Critica- 1ssues for Socia- (heor0, London |u.a.[: Sage, 2000, 211-
229
Arnold, Jorg 2006: Lntwicklungslinien des leindstrarechts in 5 1hesen, in:
H&chstrichter-iche Rechtsprechung Strafrecht BHHRSB Aug.,Sept. 2006, 303-315
Bender, Soledad 200: Die nachtrKg-iche Sicherungs/erwahrung, lrankurt a.M.: Peter
Lang.
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L(st of Cont&(b-to&s

43+*, Ma&Ka La-&a, D&6 8+(l6
Georg-August-Uniersitt Gottingen, laculty o Law ,Department o International
and loreign Criminal Law,. Main research ields: Security Policy and Criminal
Policy, Postmodern Sociology o Law, criminological aspects o International
Criminal Law.

C+o, #on) S(:, P&ofesso&, LL646 HSNUI LL6M6 L >6S6D6 HU6C6 4e&:ele.I
Seoul National Uniersity, School o Law. Main research ields: Lnironmental
Law.

De-ts'+, E&/(n, P&ofesso& e*6, D&6 (-&6 D&6 (-&6 +6'6 *-lt, D&6 *e56 +6'6
*-lt6
Georg-August-Uniersitt Gottingen, laculty o Law. Main research ields:
Medical Law, Insurance Law, Law o 1orts, Liability Law.

D-tt)e, -nna&, P&ofesso&, D&6 (-&6
Georg-August-Uniersitt Gottingen, laculty o Law ,Department o Criminal
Medical and Biological Law,. Main research ields: Criminal Law, Criminal
Procedural Law, Philosophy o Law, Medical Law ,ice managing director o the
Centre o Medical Law o the Uniersity o Gottingen,.

#eo, Seon) Woo:, Asso'(ate P&ofesso&, D&6 (-&6, 46A6 (n E'ono*('s HSNUI,
LL6M6 L P+6D6 (n La/ HSNUI
Seoul National Uniersity, School o Law. Main research ields: Public Law, Law
and Lconomics.

#e-n, We&ne&, P&ofesso&, D&6 (-&6 D&6 +6'6
Georg-August-Uniersitt Gottingen, laculty o Law ,Institute or General 1heory
o State and Political Sciences,. Main research ields: Public Law, Constitutional
listory, Political Science, Lcclesiastical Law, American Constitutional Law.

!&a-se, RM5()e&, P&ofesso&, D&6 (-&6
Georg-August-Uniersitt Gottingen, laculty o Law ,Institute or Labour Law,.
Main research ields: Labour Law, Ciil Law.

!/on, Yo-n)<oon, Asso'(ate P&ofesso&, LL6M H#a&1a&5 La/ S'+oolI, LL6M
L P+6D6 (n La/ HSNUI
Seoul National Uniersity, School o Law. Main research ield: Ciil Law.
List o Contributors

166
Lee, San) Won, Asso'(ate P&ofesso&, LL646, LL6M6 L P+6D6 (n La/ HSNUI,
LL6M6 HU6C6 4e&:ele.I
Seoul National Uniersity, School o Law. Main research ields: Criminal Law and
Procedure.

Le(tne&, >o+n M6, P&ofesso&, D&6 (-&6
Seoul National Uniersity, School o Law. Main research ields: Internet Law,
Lnironmental Law, Comparatie Law.

S'+o&:o8f, ,&an:, P&ofesso&, D&6 (-&6
Georg-August-Uniersitt Gottingen, laculty o Law ,Institute o International
Law and Luropean Union Law,. Main research ields: Constitutional Law,
Luropean Union Law and International Lconomic Law.

ISBN: 978-3-86395-012-5
ISSN: 1864-2128
Gunnar Duttge, Sang Won Lee (Hg.)
The Law in the Information and
Risk Society
Gttinger Juristische Schriften

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Universittsverlag Gttingen Universittsverlag Gttingen
The information and risk society poses a new challenge for the law in all its frag-
ments. Modern media communication and technologies increase peoples prospe-
rity while stating new risks with not uncommonly devastating crisis-potential: The
banking crisis, the safety net for the euro zone and the nuclear incident in Fukus-
hima are only the latest forms of those specifc modern common dangers which the
law is facing in many cases due to its domestically limited validity - not or not
suffciently prepared. In order to promote the international dialog within the juris-
prudence there was a conference in October 2010 held by the faculty of law of the
Georg-August-Universitt, supported by the chair of GAU, together with the faculty
of Seoul National University School of Law discussing main issues of law in a modern
information and risk society. With this volume the results of this convention shall be
made accessible to everybody interested. Thereby it illustrates not only the variety of
new issues and aspects, but also reveals that this can only be the beginning on the
way to a deeper understanding of the complex correlations.
Volume 10 in the series Gttinger Juristische Schriften
The series is published by the Faculty of Law of the Georg-August-Universitt Gt-
tingen und makes events at the faculty publicly available.

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As a countermoement security was reduced to its

Its classical unction o risk

See also !oss, All ,ln. 21,, p. 49ss.

Deutscher Bundestag, Drucksache 1,3239, linancial 1imes Deutschland, 22 October 2010,

: Knowledge might make one more

Guinness Book o \orld Records 2005, page 306

P. Oertmann, Geschtsgrundlage-Lin neuer Rechtsbegri ,1921,.

It is clear that there is

32a Abs. 1 BDSG-L.

1he legal proision in question was recently declared

KSC 2008do6 ,2008,.

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