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독일의 기관쟁의에 관한 연구

독일의 기관쟁의에 관한 연구

Material type
단행본
Personal Author
김환학, 연구책임
Corporate Author
한국. 헌법재판소. 헌법재판연구원
Title Statement
독일의 기관쟁의에 관한 연구 / 헌법재판소 헌법재판연구원 [편]
Publication, Distribution, etc
서울 :   헌법재판소 헌법재판연구원,   2017  
Physical Medium
iii, 81 p. ; 26 cm
Series Statement
비교헌법연구 ;2017-B-3
General Note
연구책임: 김환학  
Bibliography, Etc. Note
참고문헌: p. 79-81
000 00000nam c2200205 c 4500
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005 20171027142827
007 ta
008 171018s2017 ulk 000c korYA
040 ▼a 211009 ▼c 211009 ▼d 211009
074 ▼k 33-9750040-000154-01
082 0 4 ▼a 342 ▼2 23
085 ▼a 342 ▼2 DDCK
090 ▼a 342 ▼b 2016z1 ▼c 2017.B.3a
110 ▼a 한국. ▼b 헌법재판소. ▼b 헌법재판연구원
245 1 0 ▼a 독일의 기관쟁의에 관한 연구 / ▼d 헌법재판소 헌법재판연구원 [편]
260 ▼a 서울 : ▼b 헌법재판소 헌법재판연구원, ▼c 2017
300 ▼a iii, 81 p. ; ▼c 26 cm
440 0 0 ▼a 비교헌법연구 ; ▼v 2017-B-3
500 ▼a 연구책임: 김환학
504 ▼a 참고문헌: p. 79-81
700 1 ▼a 김환학, ▼e 연구책임
910 0 ▼a Republic of Korea. ▼b Constitutional Court of Korea. ▼b Constitutional Research Institute, ▼e
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 2016z1 2017.B.3a Accession No. 111780191 Availability Available Due Date Make a Reservation Service B M

Contents information

Table of Contents

Ⅰ. 서론 / 1

1. 연구의 필요성 ······································································································ 1

2. 연구내용 ··············································································································· 2

II. 기관쟁의의 제도적 의의 / 4

1. 기관쟁의제도의 발전 ··························································································· 4

가. 기관쟁의제도의 연혁 ···················································································· 4
(1) 발생사 ······································································································ 4
(2) 기본법 하에서 기관쟁의규정의 제정과정 ··········································· 5

나. 이론적 기초 ··································································································· 7
(1) 국가법인설 개요 ····················································································· 7
(2) 바이마르 시대의 기관이론 ···································································· 8
(3) 기관쟁의제도 정착을 위한 프리젠한의 역할 ···································· 10
(4) 기관개념 논의가 기관쟁의에 미친 영향 ··········································· 10

2. 연방헌법재판소의 관할과 기관쟁의 ································································ 11

가. 연방헌법재판소의 관할 ·············································································· 12

나. 기관쟁의제도의 개요 ·················································································· 13
(1) 적법요건 ································································································· 13
(2) 기타 ········································································································ 15
※ 기관쟁의 관련 법조문 ·········································································· 16

3. 기관쟁의의 기능 ································································································ 18

가. 정치적 분쟁의 법적 해결 ·········································································· 18
(1) 정당국가의 정치적 분쟁: 민주적 해결과 법치국가적 해결 ············ 18
(2) 정치적 소수의 보호 ·············································································· 19
(3) 연방헌법재판소의 적극주의 ································································ 20

나. 헌법의 해석인가 분쟁의 해결인가 ··························································· 21

다. 주관적 권리구제인가 객관적 질서유지인가 ············································ 22

라. 기관쟁의사건의 실제 ·················································································· 24
(1) 기관쟁의의 목적에 따라 ······································································ 24
(2) 연대기적 추이 ······················································································· 25
(3) 기관쟁의의 심판청구자와 대상에 따라 ············································· 26

4. 다른 소송유형과의 관계 ··················································································· 26

가. 헌법재판소 관할규정의 특수성 ································································· 26

나. 구체적 검토 ································································································· 28
(1) 연방-주 쟁의와 기관쟁의 ····································································· 28
(2) 기관쟁의와 헌법소원의 관계 ······························································ 28
(3) 기관쟁의와 추상적 규범통제의 관계 ················································· 30

III. 당사자 / 32

1. 당사자능력 ·········································································································· 32

가. 개괄 ··············································································································· 32
(1) 기관쟁의의 적용범위 결정에서 주관적 요소의 의미 ······················· 32
(2) 기본법 제93조 제1항 제1호와 연방헌법재판소법 제63조의 관계 ··· 33
(3) 기관쟁의의 기관개념 ············································································ 34

나. 당사자능력이 있는 기관 ············································································ 35
(1) 최고연방기관 ························································································· 35
(2) 부분기관(Organteile) ·············································································· 39
(3) 기타 관계자(weitere Beteiligte) ····························································· 40

2. 심판청구인적격(Antragsbefugnis) ······································································· 45

가. 자기 권리의 방어 ························································································ 45

나. 소속기관의 권리 방어(제3자의 소송담당) ··············································· 46

IV. 기관쟁의심판 / 49

1. 심판청구 ·············································································································· 49

가. 심판청구의 대상 ·························································································· 49
(1) 조치(Massnahme) 또는 부작위(Unterlassung) ······································ 49
(2) 심판청구의 대상(Antragsgegenstand)과 청구인적격(Antragsbefugnis)
················································································································ 50

나. 제소기간 ······································································································· 52

다. 기본법 위반 적시의무 ················································································ 53
(1) 법 제64조 제2항의 요건 ······································································ 53
(2) 법 제64조 제2항이 소송물에 대해 갖는 의미 ·································· 54
(3) 결정 및 주문의 척도에 미치는 영향 ················································· 54
(4) 결정의 효력에 미치는 영향 ································································ 54

2. 심사척도 ·············································································································· 55

가. 기관쟁의절차에 독특한 심사척도의 제한 ················································ 55

나. 심사척도의 근거 ·························································································· 55
(1) 헌법적 국가조직법 ················································································ 55
(2) 불문헌법 ································································································· 56
(3) 기본권의 문제 ······················································································· 56
(4) “2차적 헌법(Sekundäres Verfassungsrecht)” ········································· 57
(5) 하위법령 ································································································· 57

3. 소송물과 당사자처분권주의 ············································································· 58

가. 청구의 대상과 소송물 ················································································ 58

나. 당사자 처분권 ····························································································· 59
(1) 처분권의 인정 범위 ·············································································· 59
(2) 당사자처분권주의에 대한 비판 ··························································· 61

다. 다른 재판제도와의 비교 ············································································ 61
(1) 행정상 취소소송과의 비교 ·································································· 61
(2) 헌법재판소의 다른 절차와 기관쟁의 ················································· 62

4. 기관쟁의결정 ······································································································ 65

가. 법 제67조의 의의 ························································································ 65

나. 법 제67조 제1, 2문의 기본결정 ································································ 66
(1) 확인결정: 인용결정의 원칙적 형식 ···················································· 66
(2) 기판력의 효과 ······················································································· 67
(3) 기속력 ···································································································· 69
(4) 확인결정과 다른 결정방식의 허용성 ················································· 72

다. 심판청구 배척결정 ······················································································ 74

라. 가처분 ··········································································································· 75

V. 결어 / 77
❚참고문헌 ······················································································································· 79

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