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과잉금지원칙에서 법익형량 : 헌법이론적ㆍ비교헌법적 연구

과잉금지원칙에서 법익형량 : 헌법이론적ㆍ비교헌법적 연구 (Loan 7 times)

Material type
단행본
Personal Author
강일신, 책임연구
Title Statement
과잉금지원칙에서 법익형량 : 헌법이론적ㆍ비교헌법적 연구 / 강일신 책임연구
Publication, Distribution, etc
서울 :   헌법재판소 헌법재판연구원,   2018  
Physical Medium
iii, 79 p. ; 27 cm
Series Statement
헌법재판 심사기준 ;2018-C-2
Bibliography, Etc. Note
참고문헌: p. 75-79
000 00000nam c2200205 c 4500
001 000045955930
005 20181001104708
007 ta
008 181001s2018 ulk b 000c korYA
040 ▼a 211009 ▼c 211009 ▼d 211009
074 ▼k 33-9750040-000188-01
082 0 4 ▼a 342.519 ▼2 23
085 ▼a 342.53 ▼2 DDCK
090 ▼a 342.53 ▼b 2012z22 ▼c 2018.C.2
245 0 0 ▼a 과잉금지원칙에서 법익형량 : ▼b 헌법이론적ㆍ비교헌법적 연구 / ▼d 강일신 책임연구
260 ▼a 서울 : ▼b 헌법재판소 헌법재판연구원, ▼c 2018
300 ▼a iii, 79 p. ; ▼c 27 cm
440 0 0 ▼a 헌법재판 심사기준 ; ▼v 2018-C-2
504 ▼a 참고문헌: p. 75-79
700 1 ▼a 강일신, ▼e 책임연구
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 342.53 2012z22 2018.C.2 Accession No. 111797186 Availability Available Due Date Make a Reservation Service B M

Contents information

Table of Contents

Ⅰ. 서 론 / 1
1. 연구 배경 ․ 목적 ····································································································1
2. 연구 범위 ․ 방법 ····································································································4
Ⅱ. 법익형량의 본질: (헌)법이론적 연구 / 6
1. 법익형량 일반 ·······································································································6
가. 법익형량 의미: 원칙규범 적용방식으로서 법익형량 ····································7
나. 법익형량 구조: Alexy 형량공식 ···································································9
다. 법익형량과 사법재량 ····················································································12
2. 법익형량 비판과 그 대응 ···················································································13
가. 비판의 두 유형 ····························································································13
(1) 내재적 비판 ···························································································13
(2) 외재적 비판 ···························································································14
나. 대안의 두 방향 ····························································································15
(1) 법익형량 배제론 ····················································································15
(2) 헌법해석 중시론 ····················································································16
(3) 대안에 대한 평가 ··················································································17
다. 소결: 논증부담으로서 형량명령 ··································································19
3. 과잉금지원칙과 법익형량 ···················································································20
가. 기본권규범 적용과 과잉금지원칙 ································································20
나. 과잉금지원칙에서 법익형량 ·········································································21
다. 법익균형성 논증방식 ····················································································23
(1) 효과비교 판단 모델 ···············································································23
(2) 기본권중심 판단 모델 ···········································································25
(3) 평가 ········································································································26
Ⅲ. 법익형량 실제: 비교헌법적 연구 / 28
1. 캐나다 연방대법원의 법익형량 실제 ·································································28
가. 연혁 ··············································································································28
나. 기본권제한입법에 대한 위헌심사 ································································30
(1) 단계적 심사 ···························································································30
(2) Oakes Test ···························································································31
다. 비례성원칙 심사 경향 ··················································································36
(1) 일반적 경향 ···························································································36
(2) 효과 비례성 심사를 둘러싼 논란 ·························································36
라. 법익형량 논증방식 ·······················································································39
(1) Alberta v. Hutterian Brethren of Wilson Colony ······················39
(2) R v. K.R.J ····························································································41
(3) 평가 ········································································································42
2. 독일 연방헌법재판소의 법익형량 실제 ·····························································43
가. 연혁 ··············································································································43
나. 기본권제한입법에 대한 위헌심사 ································································45
(1) 단계적 심사 ···························································································45
(2) 비례성원칙 ·····························································································46
다. 비례성원칙 심사 경향 ··················································································49
(1) 일반적 경향 ···························································································49
(2) 협의 비례성 중심 심사를 둘러싼 논란 ················································49
라. 법익형량 논증방식 ·······················································································52
(1) 법익형량 설시구조 ·················································································52
(2) 법익형량 논증방식으로서 수인가능성? ·················································54
(3) 법익형량 합리화 방식 ···········································································55
(4) 평가 ········································································································56
Ⅳ. 우리 헌법실무에 대한 비판적 고찰 / 57
1. 우리 헌법재판소 법익형량 실제 ········································································57
가. 논증방식 연원 ······························································································57
나. 논증방식을 둘러싼 다툼 ··············································································66
다. 무엇이 문제인가? ·························································································69
(1) 논증 양 or 질? ······················································································69
(2) 논증단계? ·······························································································70
(3) 논증방식? ·······························································································70
2. 헌법이론적・비교헌법적 시사점 ··········································································71
가. 헌법이론적 시사점 ·······················································································71
나. 비교헌법적 시사점 ·······················································································72
Ⅴ. 결론: 전망과 제언 / 73
❚참고문헌 ····································································································································75

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