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집회 및 시위에서의 복면착용금지에 관한 비교법적 검토 : 캐나다 및 미국을 중심으로

집회 및 시위에서의 복면착용금지에 관한 비교법적 검토 : 캐나다 및 미국을 중심으로 (1회 대출)

자료유형
단행본
개인저자
김선희, 연구책임
단체저자명
한국. 헌법재판소. 헌법재판연구원
서명 / 저자사항
집회 및 시위에서의 복면착용금지에 관한 비교법적 검토 : 캐나다 및 미국을 중심으로 / 헌법재판소 헌법재판연구원 [편]
발행사항
서울 :   헌법재판소 헌법재판연구원,   2016  
형태사항
vi, 168 p. ; 26 cm
총서사항
비교헌법연구 ;2016-B-2
일반주기
부록: 1. 복면착용금지를 내용으로 하는 집사법 개정안(2006~2015), 2. 캐나다 형법 개정 전, 후 법률 원문, 3. 미국의 복면금지법제  
연구책임: 김선희  
서지주기
참고문헌: p. 163-168
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040 ▼a 211009 ▼c 211009 ▼d 211009
074 ▼k 33-9750040-000116-01
082 0 4 ▼a 342 ▼2 23
085 ▼a 342 ▼2 DDCK
090 ▼a 342 ▼b 2016z1 ▼c 2016.B.2a
110 ▼a 한국. ▼b 헌법재판소. ▼b 헌법재판연구원
245 1 0 ▼a 집회 및 시위에서의 복면착용금지에 관한 비교법적 검토 : ▼b 캐나다 및 미국을 중심으로 / ▼d 헌법재판소 헌법재판연구원 [편]
260 ▼a 서울 : ▼b 헌법재판소 헌법재판연구원, ▼c 2016
300 ▼a vi, 168 p. ; ▼c 26 cm
440 0 0 ▼a 비교헌법연구 ; ▼v 2016-B-2
500 ▼a 부록: 1. 복면착용금지를 내용으로 하는 집사법 개정안(2006~2015), 2. 캐나다 형법 개정 전, 후 법률 원문, 3. 미국의 복면금지법제
500 ▼a 연구책임: 김선희
504 ▼a 참고문헌: p. 163-168
700 1 ▼a 김선희, ▼e 연구책임
910 0 ▼a Constitutional Research Institute, ▼e
945 ▼a KLPA

소장정보

No. 소장처 청구기호 등록번호 도서상태 반납예정일 예약 서비스
No. 1 소장처 중앙도서관/법학도서실(법학도서관 지하1층)/ 청구기호 342 2016z1 2016.B.2a 등록번호 111761774 도서상태 대출가능 반납예정일 예약 서비스 B M

컨텐츠정보

목차

Ⅰ. 서론 / 1
1. 연구의 목적과 필요성 ························································································· 1
2. 연구의 범위와 논의 전개의 방향 ······································································ 2
Ⅱ. 헌법상 집회의 자유와 표현의 자유 / 5
1. 집회에서의 복면착용금지로 제한되는 기본권
- 집회의 자유와 표현의 자유 ············································································ 5
2. 표현의 자유 ·········································································································· 7
가. 의의 및 기능 ································································································· 7
나. 표현의 자유의 한계 ······················································································ 8
다. 표현의 자유에 대한 제한과 그 한계 ························································· 8
(1) 제한 ·········································································································· 8
(가) 헌법 제37조 제2항 ·········································································· 8
(나) 헌법 제21조 제2항 ·········································································· 8
(2) 제한의 한계 ····························································································· 9
라. 복면집회금지와 정치적 표현의 자유 ························································· 9
(1) 정치적 집회의 자유와 정치적 표현의 자유 ········································ 9
(2) 정치적 표현의 자유와 심사강도 ························································· 10
(3) 공론의 장 ······························································································· 12
(4) 명확성의 원칙 ······················································································· 14
3. 집회의 자유 ········································································································ 15
가. 의의 및 기능 ······························································································· 15
나. 관련 헌법규정의 연혁 ················································································ 16
다. 내용 ··············································································································· 18
(1) 집회와 시위의 개념 및 관계 ······························································ 18
(가) 집회 ································································································· 18
(나) 시위 ································································································· 18
(다) 집회와 시위의 관계 ······································································ 19
(2) 구체적 내용 ··························································································· 20
라. 집회의 자유의 제한과 제한의 한계 ························································· 21
(1) 제한 ········································································································ 21
(가) 헌법 제37조 제2항 ········································································ 21
(나) 집회 및 시위에 관한 법률 ··························································· 21
(2) 제한의 한계 ··························································································· 22
(가) 허가제 금지 ··················································································· 22
(나) 본질적 내용 침해 금지 ································································ 23
4. 집회의 자유와 표현의 자유의 관계 ································································ 24
가. 집회의 자유의 본질 ···················································································· 24
(1) 학설 ········································································································ 24
(2) 집회의 자유의 본질에 따른 심사기준 ··············································· 26
나. 익명집회의 자유와 익명표현의 자유 ······················································· 28
5. 소결 ····················································································································· 30
Ⅲ. 캐나다의 복면금지법 / 32
1. 입법배경 및 입법과정 ······················································································· 32
2. 개정내용 ·············································································································· 33
3. 찬반론 ················································································································· 36
가. 위헌론 ··········································································································· 36
(1) 필요성 부정 - 중복법률 ······································································· 36
(2) 명확성의 원칙 침해 ·············································································· 38
(3) 평화적 집회의 자유 및 표현의 자유 침해 ········································ 39
나. 합헌론 - 법안 도입의 강한 필요성 ·························································· 40
4. 검토 및 시사점 ·································································································· 42
가. 캐나다의 권리와 자유헌장 ········································································· 42
(1) 평화적 집회의 자유와 표현의 자유 ··················································· 42
(2) 자유의 제한 및 제한의 한계 ······························································ 43
나. 몬트리올 P-6 조례 ······················································································ 44
(1) 퀘벡주의 집회의 자유를 제한하는 조례 및 법안 ···························· 44
(2) 복면금지와 관련한 몬트리올 P-6 조례 제3.2조 ································ 47
다. 시사점 ··········································································································· 48
Ⅳ. 미국의 복면금지법제와 판결 / 50
1. 서언 ····················································································································· 50
2. 입법배경 ·············································································································· 52
3. 미국의 복면금지법제 ························································································· 53
4. 제한되는 헌법상 권리 및 익명성에 관한 미 연방대법원 판례 ··················· 57
가. 제한되는 헌법상 권리 ················································································ 58
(1) 수정헌법 제1조 ····················································································· 58
(2) 수정헌법 제14조 ··················································································· 59
나. 익명성에 관한 미 연방대법원 판례 ························································· 60
5. 판결 ····················································································································· 61
가. 합헌선언 판결 ····························································································· 61
(1) Hernandez v. Superintendent ·································································· 61
(2) Church of the American Knights of the Ku Klux Klan v. Kerik ······ 64
(가) 지방법원의 판결 ············································································ 65
(나) 제2 연방항소법원의 판결 ···························································· 66
(3) State v. Miller ························································································ 68
(4) 합헌선언 판결에 대한 비판 ································································ 73
나. 위헌선언 판결 ····························································································· 75
(1) Aryan v. Mackey ··················································································· 75
(2) Ghafari v. Municipal Court for the San Francisco Judicial District
of San Francisco ···················································································· 78
(3) Knights of the Ku Klux Klan v. Martin Luther King,
Jr. Worshippers ······················································································· 81
(4) American Knights of the Ku Klux Klan v. City of Goshen ·············· 83
(5) Church of the American Ku Klux Klan v. City of Erie ···················· 86
6. 검토 및 시사점 ·································································································· 89
가. 위헌판결과 합헌판결 비교 및 분석 ························································· 89
나. 복면금지법에 대한 찬반론 ········································································· 92
다. 복면의 양면성 ····························································································· 93
라. 익명표현의 자유와 향후 전망 ··································································· 97
Ⅴ. 집회 및 시위에서 복면착용금지에 관한 법안 검토 / 99
1. 우리나라의 복면집회금지법안 ·········································································· 99
가. 개정안에 대한 검토 ···················································································· 99
나. 권경석 의원, 신지호 의원, 정갑윤 의원 대표발의 개정안 ·················· 101
2. 집회 및 시위에서의 복면착용금지에 관한 찬반론 ····································· 105
가. 서언 ············································································································· 105
나. 명확성의 원칙 ···························································································· 106
(1) 합헌론 ·································································································· 106
(2) 위헌론 ·································································································· 107
(3) 헌법재판소 입장 ················································································· 107
(4) 검토 ······································································································ 108
다. 복면집회금지법안의 정당성과 필요성 ···················································· 110
(1) 합헌론 ·································································································· 111
(2) 위헌론 ·································································································· 111
(3) 복면집회ㆍ시위와 불법ㆍ폭력 집회ㆍ시위의 연관성 ····················· 112
(4) 집회ㆍ시위현장에서의 경찰채증 ······················································· 115
라. 과잉금지의 원칙 ······················································································ 118
(1) 최소침해성 ··························································································· 119
(가) 위헌론 ··························································································· 119
(나) 합헌론 ··························································································· 120
(다) 검토 ······························································································· 120
(2) 법익균형성 ··························································································· 121
(가) 위헌론 ··························································································· 121
(나) 합헌론 ··························································································· 122
(다) 검토 ······························································································· 122
3. 비교법적 검토 ·································································································· 125
가. 입법배경 및 입법목적 ·············································································· 125
나. 복면금지법의 규정 형식 ·········································································· 126
다. 명확성의 원칙 ···························································································· 128
라. 중복적인 과잉형벌 ···················································································· 130
마. 복면제거명령권 ·························································································· 132
Ⅵ. 결론 / 134
❚[부록 1] 복면착용금지를 내용으로 하는 집시법 개정안(2006-2015) ·············· 136
❚[부록 2] 캐나다 형법 개정 전, 후 법률 원문 ······················································ 144
❚[부록 3] 미국의 복면금지법제 ················································································ 146
❚참고문헌 ····················································································································· 163

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