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일본의 양심의 자유법리 : 공무원인 교사에 대한 직무명령과 양심의 자유의 한계

일본의 양심의 자유법리 : 공무원인 교사에 대한 직무명령과 양심의 자유의 한계

자료유형
단행본
개인저자
이혜진, 책임연구
서명 / 저자사항
일본의 양심의 자유법리 : 공무원인 교사에 대한 직무명령과 양심의 자유의 한계 / 이혜진 책임연구
발행사항
서울 :   헌법재판소 헌법재판연구원,   2018  
형태사항
iii, 71 p. ; 27 cm
총서사항
비교헌법연구 ;2018-B-8
서지주기
참고문헌: p. 67-71
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260 ▼a 서울 : ▼b 헌법재판소 헌법재판연구원, ▼c 2018
300 ▼a iii, 71 p. ; ▼c 27 cm
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945 ▼a KLPA

소장정보

No. 소장처 청구기호 등록번호 도서상태 반납예정일 예약 서비스
No. 1 소장처 중앙도서관/법학도서실(법학도서관 지하1층)/ 청구기호 342 2016z1 2018.B.8 등록번호 111797189 도서상태 대출가능 반납예정일 예약 서비스 B M

컨텐츠정보

목차

Ⅰ. 들어가며 / 1
1. 연구의 의의 ··········································································································1
2. 연구의 범위와 구성 ······························································································2
가. 연구의 범위 ····································································································2
나. 연구의 구성 ····································································································5
Ⅱ. 일본의 ‘양심의 자유’ 법리 / 6
1. 일본의 ‘양심의 자유’ 규정과 그 독자성 ·····························································6
2. 양심의 자유의 의미와 범위 ·················································································8
가. ‘양심’의 의미와 ‘내심’과의 관계 ···································································8
(1) ‘양심’의 의미 ···························································································8
(2) 내심의 자유로서의 양심 ········································································10
나. 종교(신교)의 자유와 양심의 자유 ·······························································11
다. ‘양심의 자유’와 ‘사상의 자유’의 차이 ························································12
(1) 구별부정설(통설ㆍ판례) ·········································································12
(2) 구별긍정설(소수설) ················································································13
라. ‘사상ㆍ양심의 자유’와 그 밖의 정신적 자유 ··············································15
3. 제19조가 보호하는 정신활동의 보호영역 ·························································15
가. 학계의 논의 ··································································································16
나. 판례의 입장 ··································································································17
[판례 1] 사죄광고사건 ················································································17
4. ‘사상ㆍ양심의 자유’의 보장 내용 - ‘침해해서는 안된다’의 의미 ···················20
가. 사상ㆍ양심의 강제ㆍ통제 금지 ····································································20
- ii -
나. 사상ㆍ양심의 표명강제와 추지 금지(침묵의 자유 보장) ····························21
[판례 2] 코우지마치 중학교 내신서 사건(麹町中学校内申書事件, 1988) ···22
다. 사상ㆍ양심을 이유로 하는 불이익 취급의 금지 ·········································23
[판례 3] 미쯔비시수지 사건(三菱樹脂事件, 1973) - 내심조사 ·················23
라. 사상ㆍ양심에 반하는 외부적 행위 강제 금지 ············································24
마. 기타 관련 논의사항 ·····················································································25
(1) 사상교육ㆍ사상선전의 금지 ···································································25
(2) 방어적 민주주의(闘う民主主義) ·····························································25
(3) 법적 의무로부터의 해방 ········································································26
Ⅲ. 국가제창ㆍ반주 거부 사건과 국기경례 거부 사건 / 27
1. 최고재판소 판결 이전의 상황 ···········································································27
2. ‘히노마루ㆍ기미가요’ 소송 최고재판소 판결 ····················································29
가. 피아노반주 거부사건 판결(2007년 2월 27일) ···········································30
(1) 사건개요와 판례요지 ·············································································30
(2) 평가 ········································································································34
(가) 본건과 제19조의 적합성 ································································34
(나) 다수의견에 대한 평가 ····································································35
1) 헌법 제19조의 ‘사상ㆍ양심’ ·························································35
2) 통상 상정되는 업무 ·······································································35
3) 전체의 봉사자론ㆍ직무명령의 합헌성 ··········································36
(다) 반대의견에 대한 평가 ····································································37
나. 기립제창 거부사건 판결(2011년 5월 30일) ··············································38
(1) 사건개요와 판례요지 ·············································································38
(2) 평가 ········································································································41
(가) ‘피아노반주’ 판결과 본 판결의 관계 ············································41
(나) 정신적 자유의 간접적 제약과 합헌성 심사기준 ···························41
(다) 개별의견에 대한 평가 ····································································42
- iii -
1) 직무명령에 대한 합헌성 판단 ·······················································42
2) 제한의 목적과 수단의 합리성 ·······················································44
3. 소결 ·····················································································································45
가. 판결이 남긴 것 ····························································································45
나. 판례의 향후 전망 ·························································································47
다. 여전히 남아 있는 논의 ················································································49
Ⅳ. 직무명령과 양심의 자유의 한계 문제 / 50
1. 국기ㆍ국가에 대한 경의표명 요구의 허용여부 ·················································51
2. 공무원으로서의 교사라는 신분의 특이성 ··························································52
가. 공무원의 인권제약의 근거이론 ····································································52
나. 공무원으로서의 교사 ····················································································54
다. 국기ㆍ국가 사건에서의 위헌심사기준 ·························································55
3. 교사의 권리와 직무명령의 충돌 ········································································57
가. 상황별 논증의 필요성 ··················································································57
나. 학습지도요령ㆍ직무명령의 법적 의의 ·························································58
(1) 학습지도요령의 법적 효력 ····································································58
(2) 훈령ㆍ통달의 법적 효력 ········································································60
(3) 직무명령의 법적 효력 ···········································································60
다. 교사의 권리와 직무명령의 관계 ··································································61
Ⅴ. 마치며 / 64
1. 사상 ‧ 양심의 자유의 개념 ················································································64
2. 공무원이라는 신분의 특이성과 자유의 내재적 제약성 ····································65
❚참고문헌 ························································································································ 67

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