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오스트리아 헌법재판제도에 관한 연구

오스트리아 헌법재판제도에 관한 연구 (1회 대출)

자료유형
단행본
개인저자
허완중, 연구책임
단체저자명
한국. 헌법재판소. 헌법재판연구원
서명 / 저자사항
오스트리아 헌법재판제도에 관한 연구 / 헌법재판소 헌법재판연구원 [편]
발행사항
서울 :   헌법재판소 헌법재판연구원,   2016  
형태사항
vii, 126 p. ; 26 cm
총서사항
비교헌법연구 ;2016-B-3
일반주기
연구책임: 허완중  
서지주기
참고문헌: p. 113-115
000 00000nam c2200205 c 4500
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005 20160420133501
007 ta
008 160310s2016 ulk b 000c korYA
040 ▼a 211009 ▼c 211009 ▼d 211009
074 ▼k 33-9750040-000093-01
082 0 4 ▼a 342 ▼2 23
085 ▼a 342 ▼2 DDCK
090 ▼a 342 ▼b 2016z1 ▼c 2016.B.3
110 ▼a 한국. ▼b 헌법재판소. ▼b 헌법재판연구원
245 1 0 ▼a 오스트리아 헌법재판제도에 관한 연구 / ▼d 헌법재판소 헌법재판연구원 [편]
260 ▼a 서울 : ▼b 헌법재판소 헌법재판연구원, ▼c 2016
300 ▼a vii, 126 p. ; ▼c 26 cm
440 0 0 ▼a 비교헌법연구 ; ▼v 2016-B-3
500 ▼a 연구책임: 허완중
504 ▼a 참고문헌: p. 113-115
700 1 ▼a 허완중, ▼e 연구책임
945 ▼a KLPA

소장정보

No. 소장처 청구기호 등록번호 도서상태 반납예정일 예약 서비스
No. 1 소장처 중앙도서관/법학도서실(법학도서관 지하1층)/ 청구기호 342 2016z1 2016.B.3 등록번호 111752847 도서상태 대출가능 반납예정일 예약 서비스 B M
No. 2 소장처 중앙도서관/법학도서실(법학도서관 지하1층)/ 청구기호 342 2016z1 2016.B.3 등록번호 111752848 도서상태 대출가능 반납예정일 예약 서비스 B M

컨텐츠정보

목차

Ⅰ. 머리말–충분히 소개되지 못한 오스트리아 헌법재판제도 / 1
Ⅱ. 오스트리아 헌법의 특성과 개관 / 3
1. 헌법의 중층성 ······································································································ 3
가. 헌법의 법원 ··································································································· 3
나. 헌법의 서열 ··································································································· 4
2. 연방헌법 개관 ······································································································ 4
Ⅲ. 헌법재판소의 헌법상 지위 / 8
1. 헌법재판제도 연혁 ······························································································ 8
2. 사법조직체계상 최고사법기관 ·········································································· 10
가. 연방헌법상 사법 ·························································································· 10
나. 최고사법기관 ······························································································· 11
다. 최고재판소 ··································································································· 12
라. 행정재판소 ··································································································· 13
Ⅳ. 헌법재판소 조직 / 15
1. 헌법재판소 구성 ································································································ 15
2. 헌법재판소 구성원의 신분보장 ········································································ 17
3. 헌법재판소 구성원의 겸직금지 ········································································ 19
4. 헌법재판소의 직무활동 ····················································································· 19
Ⅴ. 헌법재판소 권한 / 20
1. 재산권적 청구에 관한 보충적 재판 ································································ 20
2. 권한쟁의심판 ······································································································ 22
가. 권한분쟁에 관한 재판 ················································································ 22
(1) 법원과 행정청의 권한분쟁(연방헌법 제138조 제1항 제1호) ··········· 24
(2) 일반법원과 행정법원이나 행정재판소의 권한분쟁 그리고
헌법재판소 자신과 다른 모든 법원의 권한분쟁
(연방헌법 제138조 제1항 제2호) ························································ 25
(3) 연방과 주나 주 서로 간의 권한분쟁(연방헌법 제138조
제1항 제3호) ·························································································· 26
(4) 권한분쟁에서 절차와 판결 ·································································· 26
나. 권한 확인 ····································································································· 27
(1) 연방과 주의 권한 확인(연방헌법 제138조 제2항) ···························· 27
(2) 회계검사원 권한 확인 ·········································································· 29
(3) 행정감찰관 권한 확인 ·········································································· 29
3. 합의심사 ·············································································································· 30
4. 조사위원회와 관련한 의견 차이에 관한 심판 ··············································· 31
5. 명령위법심사 ······································································································ 32
가. 심사대상 ······································································································· 33
나. 심사기준 ······································································································· 35
다. 청구권 ··········································································································· 36
(1) 법원 제청과 헌법재판소 직권 ····························································· 36
(2) 개인청구 ································································································· 37
(가) 권리침해 ························································································· 38
(나) 직접성 ····························································································· 38
(다) 즉시 효력성 ··················································································· 38
(라) 처리 거부 사유 ·············································································· 39
(3) 당사자청구 ····························································································· 39
(4) 주정부 청구 ··························································································· 40
(5) 연방정부 청구 ······················································································· 40
(6) 행정감찰관 청구 ··················································································· 40
(7) 지방자치단체 청구 ················································································ 40
(8) 연방재무장관 청구 ·············································································· 41
라. 심사절차 ······································································································· 41
마. 헌법재판소 판결 ·························································································· 42
(1) 명령 폐지 ······························································································· 43
(2) 명령이 법률위반이었다는 판결 ··························································· 43
(3) 청구 기각 ······························································································· 43
(4) 명령이 법률위반이 아니었다는 판결 ················································· 43
(5) 명령이 법률위반으로서 폐지되지 않는다는 판결 ···························· 44
바. 판결의 법적 효력 ························································································ 44
6. 재공포위법심사 ·································································································· 46
가. 심사대상 ······································································································· 46
나. 심사기준 ······································································································· 47
다. 청구권 ··········································································································· 47
라. 심사절차 ······································································································· 48
마. 헌법재판소 판결 ·························································································· 48
(1) 재공포 취소 ··························································································· 49
(2) 재공포가 법률위반이었다는 판결 ······················································· 49
(3) 청구 기각 ······························································································· 49
(4) 재공포가 법률위반이 아니었다는 판결 ············································· 49
(5) 재공포가 법률위반으로서 취소되지 않는다는 판결 ························ 50
바. 판결의 법적 효력 ························································································ 50
7. 법률위헌심사 ······································································································ 51
가. 심사대상 ······································································································· 51
나. 심사기준 ······································································································· 53
다. 청구권 ··········································································································· 55
(1) 법원 제청과 헌법재판소 직권 ····························································· 55
(2) 개인청구 ································································································· 56
(3) 당사자청구(법률소원) ··········································································· 57
(4) 정치기관 청구 ······················································································· 58
라. 심사절차 ······································································································· 59
마. 헌법재판소 판결 ·························································································· 60
(1) 법률 폐지 ······························································································· 60
(2) 법률이 위헌이었다는 판결 ·································································· 60
(3) 청구 기각 ······························································································· 61
(4) 법률이 위헌이 아니었다는 주문 ························································· 61
(5) 법률이 위헌이라서 폐지되지 않는다는 주문 ···································· 61
바. 판결의 법적 효력 ························································································ 61
8. 국가조약위법심사 ······························································································ 62
가. 심사대상 ······································································································· 62
나. 심사기준 ······································································································· 63
다. 청구권 ··········································································································· 63
라. 헌법재판소 판결 ·························································································· 64
9. 선거재판 ·············································································································· 64
가. 선거심사 ······································································································· 64
(1) 심사대상 ································································································· 64
(2) 심사기준 ································································································· 65
(3) 청구권 ···································································································· 65
(4) 심사절차 ································································································· 66
(5) 헌법재판소 판결 ··················································································· 67
7. 법률위헌심사 ······································································································ 51
가. 심사대상 ······································································································· 51
나. 심사기준 ······································································································· 53
다. 청구권 ··········································································································· 55
(1) 법원 제청과 헌법재판소 직권 ····························································· 55
(2) 개인청구 ································································································· 56
(3) 당사자청구(법률소원) ··········································································· 57
(4) 정치기관 청구 ······················································································· 58
라. 심사절차 ······································································································· 59
마. 헌법재판소 판결 ·························································································· 60
(1) 법률 폐지 ······························································································· 60
(2) 법률이 위헌이었다는 판결 ·································································· 60
(3) 청구 기각 ······························································································· 61
(4) 법률이 위헌이 아니었다는 주문 ························································· 61
(5) 법률이 위헌이라서 폐지되지 않는다는 주문 ···································· 61
바. 판결의 법적 효력 ························································································ 61
8. 국가조약위법심사 ······························································································ 62
가. 심사대상 ······································································································· 62
나. 심사기준 ······································································································· 63
다. 청구권 ··········································································································· 63
라. 헌법재판소 판결 ·························································································· 64
9. 선거재판 ·············································································································· 64
가. 선거심사 ······································································································· 64
(1) 심사대상 ································································································· 64
(2) 심사기준 ································································································· 65
(3) 청구권 ···································································································· 65
(4) 심사절차 ································································································· 66
(5) 헌법재판소 판결 ··················································································· 67
(6) 판결의 법적 효력 ················································································· 68
나. 해당 직 상실에 관한 재판 ········································································· 69
(1) 해당 직 상실 선고 대상 ······································································ 69
(2) 해당 직 상실 선고절차 개시 ······························································ 69
(3) 해당 직 상실 선고절차 진행 ······························································ 70
(4) 해당 직 상실 선고절차에서 헌법재판소 판결 ·································· 70
다. 국민발안, 국민투표, 국민의견조사와 유럽연합 시민발의
결과에 관한 심사 ························································································ 70
라. 선거인명부 등재와 삭제에 관한 재판 ······················································ 71
마. 연방헌법 제141조 사무에서 독자적으로 다툴 수 있는 처분 취소 ······ 71
10. 탄핵심판 ············································································································ 72
가. 국가법적 책임의 대상과 기준 ··································································· 72
(1) 연방집행영역 책임 ················································································ 72
(2) 주집행영역 책임 ··················································································· 74
(3) 연방수도 비인(Wien)의 고유한 권한영역 책임 ································· 74
나. 심판절차 ······································································································· 75
다. 헌법재판소 판결 ·························································································· 75
11. 특별행정재판 혹은 재판소원 ·········································································· 76
가. 심사대상 ······································································································· 76
나. 심사기준 ······································································································· 78
다. 청구권 ··········································································································· 79
라. 심사절차 ······································································································· 80
(1) 소송요건 ································································································· 80
(2) 소원의 형식과 내용 ·············································································· 81
(3) 소원의 효력 ··························································································· 81
(4) 변론 ········································································································ 82
마. 헌법재판소 재판권 ······················································································ 82
(1) 소원의 각하나 결정을 통한 절차종결 ··············································· 82
(2) 결정을 통한 소원 처리 거부 ······························································ 83
(3) 판결을 통한 본안판단 ·········································································· 84
바. 임박한 집단절차에서 처분 ········································································· 85
사. 여론: 최고재판소의 기본권소원 ································································ 85
12. 국제법위반심사 ································································································ 86
Ⅵ. 헌법재판소의 심판과 집행 / 88
1. 헌법재판소 심판 ································································································ 88
2. 법률을 폐지하는 판결 주문 ············································································· 91
가. 확정력 ··········································································································· 91
나. 소급효 ··········································································································· 92
다. 기속력 ··········································································································· 93
라. 주문 내용 ····································································································· 94
3. 헌법재판소의 헌법합치적 해석 ········································································ 94
가. 헌법합치적 해석의 의의 ············································································ 94
나. 헌법재판소 전유물이 아닌 헌법합치적 해석 ·········································· 95
다. 헌법합치적 해석과 관련한 헌법재판소의 특별한 지위 ························· 96
라. 절차적 측면에서 헌법합치적 해석의 의미 ·············································· 97
마. 법원이 자기 헌법합치적 해석을 따르지 않을 때 헌법재판소의 대응 ······· 98
4. 헌법재판소 판결 집행 ······················································································· 98
Ⅶ. 정리와 평가 / 100
1. 오스트리아 헌법재판과 한국 헌법재판의 비교 ··········································· 100
가. 규범통제 ····································································································· 100
나. 헌법소원 ····································································································· 102
2. 오스트리아 헌법재판의 특징 ·········································································· 104
가. 규범통제 1원화 ·························································································· 104
나. 특별법원이면서 소극적 입법자로서 기능하는 헌법재판소 ·················· 105
다. 신속한 헌법보장기관인 헌법재판소 ······················································· 106
라. 자기재판을 허용하는 권한쟁의심판 ······················································· 106
마. 헌법재판소 판결 집행의 확실한 보장 ···················································· 107
바. 임기가 없는 헌법재판소 구성원 ····························································· 107
3. 시사점 ··············································································································· 108
가. 재판소원 도입을 통한 기본권보장수준 향상 ········································ 108
나. 규범통제 다양화 ························································································ 110
다. 헌법재판소와 대법원의 충돌 해결방안으로서 권한쟁의심판 ·············· 110
Ⅷ. 맺음말: 참고할 점이 있는 오스트리아 헌법재판제도 / 112
❚참고문헌 ····················································································································· 113
❚연방헌법 제7장 헌법과 행정의 보장 ····································································· 117
B. 헌법재판 ············································································································· 117

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