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적극적 평등실현조치에 대한 미국 연방대법원의 위헌심사

적극적 평등실현조치에 대한 미국 연방대법원의 위헌심사 (1회 대출)

자료유형
단행본
개인저자
김지영, 연구책임
단체저자명
한국. 헌법재판소. 헌법재판연구원
서명 / 저자사항
적극적 평등실현조치에 대한 미국 연방대법원의 위헌심사 / 헌법재판소 헌법재판연구원 [편]
발행사항
서울 :   헌법재판소 헌법재판연구원,   2017  
형태사항
iii, 94 p. ; 26 cm
총서사항
비교헌법연구 ;2017-B-2
일반주기
연구책임: 김지영  
서지주기
참고문헌: p. 90-94
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085 ▼a 342 ▼2 DDCK
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110 ▼a 한국. ▼b 헌법재판소. ▼b 헌법재판연구원
245 1 0 ▼a 적극적 평등실현조치에 대한 미국 연방대법원의 위헌심사 / ▼d 헌법재판소 헌법재판연구원 [편]
260 ▼a 서울 : ▼b 헌법재판소 헌법재판연구원, ▼c 2017
300 ▼a iii, 94 p. ; ▼c 26 cm
440 0 0 ▼a 비교헌법연구 ; ▼v 2017-B-2
500 ▼a 연구책임: 김지영
504 ▼a 참고문헌: p. 90-94
700 1 ▼a 김지영, ▼e 연구책임
910 0 ▼a Republic of Korea. ▼b Constitutional Court of Korea. ▼b 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 2017.B.2a 등록번호 111780190 도서상태 대출가능 반납예정일 예약 서비스 B M

컨텐츠정보

목차

1. 연구의 배경과 목적 ····························································································· 1

2. 연구의 범위와 논의 전개의 방향 ······································································ 2

Ⅱ. 미국의 적극적 평등실현조치의 개념과 발전 / 5

1. 적극적 평등실현조치의 개념과 그 특징 ·························································· 5

2. 등장배경과 발전과정 ··························································································· 8

가. 도입의 배경 및 취지 ···················································································· 8

나. 발전과정에서의 사법적 판단과 정책 변화 ·············································· 10

다. 주(州)단위 적극적 평등실현조치 금지 현황과 자발적 도입 움직임 ···· 11

3. 시행방식 및 영역 ······························································································ 14

가. 다양한 시행방식 ·························································································· 14

나. 주요 적용영역 ····························································································· 17

4. 정책의 당위성 및 유용성에 대한 견해대립 ··················································· 18

가. 찬성론의 입장 ····························································································· 18
(1) 과거 차별에 대한 시정 및 구제 ························································· 18
(2) 다양성 증진 ··························································································· 19
(3) 소수인종 개개인 및 지역사회에 긍정적 영향 행사 ························ 20

나. 반대론의 입장 ····························································································· 20
(1) 집단적 특혜로 인한 개인적 평등의 희생 ·········································· 20
(2) 역차별 발생 ··························································································· 21
(3) 인종적 열등감․적대감 형성 ······························································ 22

5. 소결 및 평가 ······································································································ 22

Ⅲ. 적극적 평등실현조치에 대한 위헌심사기준 정립 / 27

1. 평등심사체계 일반론 ························································································· 27

2. 소수인종을 위한 적극적 평등실현조치에 대한 위헌심사기준 ···················· 28

가. 심사기준 정립의 노력 ················································································ 28
(1) 논의의 촉발 - Regents of Univ. of California v. Bakke 판결 ·········· 28
(2) 지속된 의견대립 - Fullilove 판결 및 Wygant 판결 ·························· 32
(3) 엄격심사 적용에 대한 다수의견 형성 - Croson 판결 ······················ 34
(4) 중간심사 적용과 이에 대한 판례변경 - Metro Broadcasting 판결 및
Adarand 판결 ························································································· 35
(5) 엄격심사 적용 여부를 결정하기 위한 판단기준 마련 - Shaw 판결 등
················································································································ 37

나. 엄격심사기준 적용의 재확인 ····································································· 38
(1) Grutter v. Bollinger 판결 ······································································ 39
(2) Gratz v. Bollinger 판결 ········································································· 40

3. 엄격심사기준 적용에 대한 문제제기 ······························································ 41

4. 평가: 적극적 평등실현조치와 평등의 관계에 대한 미 연방대법원의 입장
····························································································································· 42

Ⅳ. 적극적 평등실현조치에 대한 위헌심사의 내용 / 46

1. 위헌심사의 주요 판단요소 ··············································································· 46

가. 긴절한 공익(Compelling Interest) 존재 여부 ············································· 46

나. 목적과 수단의 상관성 정도 ······································································· 51

2. 위헌심사 내용의 타당성에 대한 문제제기 ····················································· 55

가. 심사내용에 대한 비판 ················································································ 55

나. 검토 ··············································································································· 57

3. 적극적 평등실현조치에 관한 연방대법원의 최근 판례 ································ 58

가. 2013년 Fisher v. Univ. of Texas at Austin 판결(Fisher I) ······················· 58
⑴ 사건의 배경 ···························································································· 58
⑵ 주요요지 ································································································· 60
⑶ 의의 및 한계 ·························································································· 61

나. 2016년 Fisher v. Univ. of Texas at Austin 판결(Fisher II) ····················· 63
⑴ 사건의 배경 ···························································································· 63
⑵ 주요요지 ································································································· 63
⑶ 의의 및 한계 ·························································································· 69

4. 분석 및 시사점 ·································································································· 72

가. 적극적 평등실현조치에 대한 위헌심사기준 ············································ 72

나. 위헌심사의 내용 ·························································································· 79
(1) 긴절한 공익 여부에 대한 판단과 그 의미 ········································ 79
(2) 목적과 수단의 긴밀한 상관성에 대한 입증책임 및 판단요소 ······· 82

Ⅴ. 결론 / 87
❚참고문헌 ······················································································································· 90

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