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사회적 기본권 침해 여부의 심사기준에 관한 검토

사회적 기본권 침해 여부의 심사기준에 관한 검토 (Loan 12 times)

Material type
단행본
Personal Author
정영훈, 연구책임
Corporate Author
한국. 헌법재판소. 헌법재판연구원
Title Statement
사회적 기본권 침해 여부의 심사기준에 관한 검토 / 헌법재판소 헌법재판연구원 [편]
Publication, Distribution, etc
서울 :   헌법재판소 헌법재판연구원,   2016  
Physical Medium
iii, 105 p. ; 26 cm
Series Statement
헌법재판 심사기준 ;2016-C-1
General Note
연구책임: 정영훈  
Bibliography, Etc. Note
참고문헌: p. 101-105
000 00000nam c2200205 c 4500
001 000045864665
005 20160420133836
007 ta
008 160310s2016 ulk b 000c korYA
040 ▼a 211009 ▼c 211009 ▼d 211009
074 ▼k 33-9750040-000100-01
082 0 4 ▼a 342.519 ▼2 23
085 ▼a 342.53 ▼2 DDCK
090 ▼a 342.53 ▼b 2012z22 ▼c 2016.C.1
110 ▼a 한국. ▼b 헌법재판소. ▼b 헌법재판연구원
245 1 0 ▼a 사회적 기본권 침해 여부의 심사기준에 관한 검토 / ▼d 헌법재판소 헌법재판연구원 [편]
260 ▼a 서울 : ▼b 헌법재판소 헌법재판연구원, ▼c 2016
300 ▼a iii, 105 p. ; ▼c 26 cm
440 0 0 ▼a 헌법재판 심사기준 ; ▼v 2016-C-1
500 ▼a 연구책임: 정영훈
504 ▼a 참고문헌: p. 101-105
700 1 ▼a 정영훈, ▼e 연구책임 ▼0 AUTH(211009)10525
945 ▼a KLPA

Holdings Information

No. Location Call Number Accession No. Availability Due Date Make a Reservation Service
No. 1 Location Main Library/Law Library(Books/B1)/ Call Number 342.53 2012z22 2016.C.1 Accession No. 111752845 Availability Available Due Date Make a Reservation Service B M
No. 2 Location Main Library/Law Library(Books/B1)/ Call Number 342.53 2012z22 2016.C.1 Accession No. 111752846 Availability Available Due Date Make a Reservation Service B M

Contents information

Table of Contents

Ⅰ. 서 론 / 1
1. 연구의 의의 및 필요성 ······················································································· 1
2. 연구의 범위 및 방법 ··························································································· 5
Ⅱ. 사회적 기본권의 쟁점과 침해 여부의 심사기준에 관한 논의 상황 / 9
1. 사회적 기본권에 관한 쟁점 ··············································································· 9
가. 사회적 기본권의 특징 ·················································································· 9
(1) 권리 내용의 불명확성과 가능성의 유보 ············································· 9
(2) 보호영역 및 제한 개념 설정의 곤란성 ············································· 11
나. 학설 ··············································································································· 13
다. 헌법재판소 입장 ·························································································· 16
(1) 구체적 권리론 ······················································································· 16
(2) 법률상 권리론 ······················································································· 22
2. 심사기준에 관한 논의 상황 ············································································· 27
가. 학설 ··············································································································· 27
(1) 과소금지원칙 ························································································· 27
(2) 심사기준의 단계화 ················································································ 31
나. 헌법재판소의 입장 ······················································································ 32
3. 소결 ····················································································································· 36
Ⅲ. 사회적 기본권 침해 여부의 심사 방법에 관한 비교법적 검토 / 38
1. 남아공 헌법상의 사회적 기본권 보장과 침해 여부의 심사 ························ 38
가. 남아공 헌법상의 사회적 기본권 보장의 특징 ········································ 38
나. 사회적 기본권의 사법심사가능성(justiciability) ········································ 39
다. 합리성심사 ··································································································· 41
(1) 기본권 제한의 한계 규정의 적용 여부 ············································· 41
(2) 최소핵심의무의 부정 ············································································ 44
(3) 합리성심사의 내용과 실제 적용 ························································· 47
(가) Soobramoney결정 ··········································································· 47
(나) Grootboom결정 ··············································································· 50
(다) TAC결정 ························································································· 53
(라) Khosa결정 ······················································································· 54
라. 평가 ··············································································································· 57
2. 독일 기본법상의 사회적 기본권 보장과 침해 여부의 심사 ························ 60
가. 독일 기본법상의 사회적 기본권 보장의 특징 ········································ 60
나. 침해 여부의 심사방법 ················································································ 62
(1) 기본법 제1조 제1항과 사회국가원리에 의해서 도출되는 기본권 ········ 62
(2) 기본법 제2조 제1항 및 제2항 제1문과 사회국가원리에
의해서 도출되는 기본권 ······································································ 64
다. 평가 ··············································································································· 67
3. 스위스 헌법상의 사회적 기본권 보장과 침해 여부의 심사 ························ 70
가. 스위스 헌법상의 사회적 기본권 보장의 특징 ········································ 70
나. 사회적 기본권의 침해 여부에 관한 심사기준 ········································ 72
(1) 기본권 제한의 한계 규정의 적용 여부 ············································· 72
(2) 침해 여부의 심사기준 ·········································································· 74
다. 평가 ··············································································································· 76
3. 소결 ····················································································································· 77
가. 남아공 헌법재판소의 심사기준으로부터의 시사 ····································· 77
나. 독일 연방헌법재판소 및 스위스 연방대법원의 심사기준으로부터의 시사 ····· 80
Ⅵ. 사회적 기본권 침해 여부에 관한 심사기준의 검토 / 82
1. 사회적 기본권의 해석과 “상황(context)” ························································ 82
2. 사회적 기본권의 핵심내용과 그 침해 여부의 심사 ····································· 84
가. 사회적 기본권의 핵심내용의 확정 ··························································· 84
(1) 용어 사용의 문제 ················································································· 84
(2) 기본권 조항의 해석을 통한 핵심영역의 확정 ·································· 85
나. 침해 여부의 심사기준 ················································································ 89
(1) 급부의 수준에 관한 심사 ···································································· 89
(2) 급부 요건에 관한 심사 ········································································ 91
3. 비핵심영역에 관한 사회적 기본권의 침해 여부의 심사 ······························ 92
Ⅴ. 결론 / 97
❚참고문헌 ····················································································································· 101

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