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캐나다 연방대법원의 사법심사제도 : 연방과 주 사이의 권한 배분 및 헌장상 권리 침해를 중심으로

캐나다 연방대법원의 사법심사제도 : 연방과 주 사이의 권한 배분 및 헌장상 권리 침해를 중심으로

자료유형
단행본
개인저자
김선희, 연구책임
단체저자명
한국. 헌법재판소. 헌법재판연구원
서명 / 저자사항
캐나다 연방대법원의 사법심사제도 : 연방과 주 사이의 권한 배분 및 헌장상 권리 침해를 중심으로 / 헌법재판소 헌법재판연구원 [편]
발행사항
서울 :   헌법재판소 헌법재판연구원,   2017  
형태사항
vi, 173 p. ; 26 cm
총서사항
비교헌법연구 ;2017-B-1
일반주기
연구책임: 김선희  
서지주기
참고문헌: p. 167-173
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040 ▼a 211009 ▼c 211009 ▼d 211009
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082 0 4 ▼a 342 ▼2 23
085 ▼a 342 ▼2 DDCK
090 ▼a 342 ▼b 2016z1 ▼c 2017.B.1a
110 ▼a 한국. ▼b 헌법재판소. ▼b 헌법재판연구원
245 1 0 ▼a 캐나다 연방대법원의 사법심사제도 : ▼b 연방과 주 사이의 권한 배분 및 헌장상 권리 침해를 중심으로 / ▼d 헌법재판소 헌법재판연구원 [편]
260 ▼a 서울 : ▼b 헌법재판소 헌법재판연구원, ▼c 2017
300 ▼a vi, 173 p. ; ▼c 26 cm
440 0 0 ▼a 비교헌법연구 ; ▼v 2017-B-1
500 ▼a 연구책임: 김선희
504 ▼a 참고문헌: p. 167-173
700 1 ▼a 김선희, ▼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.1a 등록번호 111780189 도서상태 대출가능 반납예정일 예약 서비스 B M

컨텐츠정보

목차

Ⅰ. 서론 / 1

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

2. 연구의 범위와 논의 전개의 방향 ···························································· 4

Ⅱ. 캐나다 헌법 및 연방대법원 / 7

1. 캐나다 헌법 ································································································ 7

가. 연혁 ······································································································ 7

나. 법원(source of law) ············································································· 8
(1) 성문헌법 ························································································ 8
(2) 불문헌법 ······················································································ 13

2. 캐나다 연방대법원 ·················································································· 16

가. 캐나다의 사법체계 ············································································ 16

나. 연방대법원의 설립 연혁 ·································································· 20

다. 연방대법원의 헌법적 지위 ······························································ 22

라. 연방대법원의 구성 및 운영 ····························································· 24
(1) 연방대법관의 자격 ····································································· 24
(2) 연방대법관 임명절차의 개혁 ···················································· 25
(3) 심리 및 결정 정족수 ·································································· 28

3. 캐나다 연방대법원의 관할 ····································································· 29

가. 상고심 관할권 ··················································································· 30
(1) 헌법적 근거 ················································································· 30
(2) 민사 사건 상고 ··········································································· 31
(3) 형사 사건 상고 ··········································································· 33
(4) 상고허가신청 및 허가 현황 ······················································ 34

나. 권고의견 관할권 ················································································ 35
(1) 의의 ······························································································ 35
(2) 입법 배경 ····················································································· 36
(3) 청구의 주체 ················································································· 39
(4) 청구 유형 ····················································································· 43
(5) 특징 ······························································································ 45
(6) 권고의견 제시가 의무인지 여부 ··············································· 47
(7) 권고적 효력 ················································································· 48

4. 검토 및 소결 ···························································································· 49

Ⅲ. 연방대법원의 사법심사 일반론 / 53

1. 서언 ··········································································································· 53

2. 헌법 사건에서 사법심사의 요건 ···························································· 55

가. 당사자적격 ························································································· 55
(1) 민․형사 소송 중 제기되는 법률의 합헌성 ···························· 55
(2) 확인 소송 ····················································································· 56
(3) 공익에 따른 당사자적격 ···························································· 57
(4) 타인의 권리 침해를 이유한 한 소송제기 ······························· 59

나. 권리보호이익(mootness) ···································································· 60

다. 사건의 성숙성 ··················································································· 62

라. 정치 문제의 법리 불인정 ································································ 62

3. 헌법해석의 기준 ······················································································ 63

가. 합헌성 추정 ······················································································· 63

나. 현대적 해석 ······················································································· 64

다. 불문 헌법 원칙 ················································································· 65

라. 위장된 실질 판단 기준 ···································································· 66

마. 입법연혁 ····························································································· 67

4. 결정의 유형 및 내용 ··············································································· 68

가. 1982년 헌법 제52조 제1항 ······························································ 68

나. 위헌 ···································································································· 69

다. 잠정적 유효 ······················································································· 69

라. 분리 ···································································································· 73

마. 확장 해석 ··························································································· 75

바. 축소 해석 ··························································································· 77

사. 헌법적 면제 ······················································································· 78

아. 가처분 결정 및 소송 중단 여부 ····················································· 80

5. 위헌 결정의 효력 ···················································································· 82

가. 무효 ···································································································· 82

나. 기판력 ································································································· 83

다. 선례구속 원칙 ··················································································· 84

6. 이해관계인의 참가 ·················································································· 86

가. 법무부 장관 ······················································································· 87

나. 사인 ···································································································· 88

7. 검토 및 소결 ···························································································· 89

Ⅳ. 연방과 주 사이의 권한 배분과 관련된 사법심사 / 93

1. 연방주의 ··································································································· 93

가. 의의 ···································································································· 93

나. 관련 헌법 조문 ················································································· 94

2. 연방과 주 사이의 권한 배분과 관련된 사법심사절차 ························ 97

가. 법적 사안의 확정 ·············································································· 97
(1) 법적 사안 ····················································································· 97
(2) 고려 사항 ··················································································· 100

나. 입법 관할의 확정 ············································································ 102
(1) 배타적 관할 ··············································································· 103
(2) 동시 관할 ··················································································· 103
(3) 입법권의 포괄성 ······································································· 105

다. 연방기관의 주 법률로부터의 적용면제 독트린 ·························· 106

3. Reference re Secession of Quebec 사건 ················································ 109

가. 사건 개요 및 쟁점 ·········································································· 109

나. 연방 내각의 주요 질의 사항 ························································· 109

다. 연방대법원의 권고의견 관할권 ····················································· 110

라. 권고의견 ··························································································· 113

4. 검토 및 소결 ·························································································· 115

Ⅴ. 헌장상 권리 침해에 대한 심사 / 118

1. 서언 ········································································································· 118

2. 캐나다 헌장상의 권리 분류 ································································· 119

3. 제한되는 자유와 권리의 확정 ······························································ 122

4. 캐나다 헌장상의 권리 제한 및 그 한계 ············································ 124

가. 캐나다 헌장 제1조 ·········································································· 124
(1) Oakes Test ·················································································· 125
(2) 입증책임 ····················································································· 136

나. 캐나다 헌장 제33조 ········································································ 137
(1) 의의 ···························································································· 137
(2) 도입 배경 ··················································································· 139
(3) 의회 주권 ··················································································· 141
(4) 제33조 권한 행사의 요건 ························································ 142

5. 헌장 제24조 제1항에 따른 구제 ·························································· 144

가. 헌장 제52조 제1항과 제24조 제1항 비교 ···································· 144

나. 헌법 제24조 제1항의 특징 ····························································· 145
(1) 헌장상의 권리 침해의 경우에만 적용 ··································· 145
(2) 유일한 구제책이 아님 ······························································ 146
(3) 당사자적격 ················································································· 147
(4) 이미 발생된 침해 ····································································· 148
(5) 관할법원 ····················································································· 148
(6) 구제 수단의 종류 ····································································· 149

다. 행정심판원과 헌장 심사 ································································ 151
(1) 제52조 제1항 ············································································· 152
(2) 제24조 제1항 ············································································· 153
(3) 제한 ···························································································· 154

6. Reference re Same Sex Marriage 사건 ················································· 155

가. 사건 개요 및 쟁점 ·········································································· 155

나. 연방 내각의 질의 사항 ·································································· 156

다. 정치 문제 및 판단의 재량 ····························································· 157

라. 권고의견 ··························································································· 158

7. 검토 및 소결 ·························································································· 160

Ⅵ. 결론 / 163
❚참고 문헌 ········································································································· 167

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