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독일 연방헌법재판소의 추상적 규범통제

독일 연방헌법재판소의 추상적 규범통제

Material type
단행본
Personal Author
김환학, 책임연구
Title Statement
독일 연방헌법재판소의 추상적 규범통제 / 김환학 책임연구
Publication, Distribution, etc
서울 :   헌법재판소 헌법재판연구원,   2018  
Physical Medium
vii, 92 p. ; 27 cm
Series Statement
비교헌법연구 ;2018-B-7
Bibliography, Etc. Note
참고문헌: p. 90-92
000 00000nam c2200205 c 4500
001 000045955934
005 20181001105945
007 ta
008 181001s2018 ulk b 000c korYA
040 ▼a 211009 ▼c 211009 ▼d 211009
074 ▼k 33-9750040-000192-01
082 0 4 ▼a 342 ▼2 23
085 ▼a 342 ▼2 DDCK
090 ▼a 342 ▼b 2016z1 ▼c 2018.B.7
245 0 0 ▼a 독일 연방헌법재판소의 추상적 규범통제 / ▼d 김환학 책임연구
260 ▼a 서울 : ▼b 헌법재판소 헌법재판연구원, ▼c 2018
300 ▼a vii, 92 p. ; ▼c 27 cm
440 0 0 ▼a 비교헌법연구 ; ▼v 2018-B-7
504 ▼a 참고문헌: p. 90-92
700 1 ▼a 김환학, ▼e 책임연구 ▼0 AUTH(211009)60225
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 2018.B.7 Accession No. 111797190 Availability Available Due Date Make a Reservation Service B M

Contents information

Table of Contents

I. 서론 / 1
1. 연구 필요성 ··········································································································1
2. 연구범위 및 방향 ·································································································2
Ⅱ. 헌법재판과 추상적 규범통제 / 4
1. 독일 추상적 규범통제의 발전 ··············································································4
가. 연혁 ·················································································································4
(1) 바이마르 시대 ··························································································4
(가) 제한적인 추상적 규범통제 ·······························································4
(나) 규범통제제도에 대한 논쟁과 확대시도 ············································5
(2) 추상적 규범통제의 기본법 도입 ·····························································6
나. 추상적 규범통제 제도 정착의 계기 ······························································7
(1) 규범통제의 척도(헌법의 우위) ·································································7
(2) 규범통제권의 부여 ···················································································8
(3) 독일의 연방헌법재판소 ············································································9
2. 연방헌법재판소의 규범통제 ···············································································10
가. 연방헌법재판소의 관할 ················································································10
(1) 연방헌법재판소의 관할사항의 분류 ······················································11
(2) 헌법재판소 관할규정의 특수성 ·····························································12
나. 규범통제의 분류 ·························································································12
(1) 이론적 구분 ···························································································12
(2) 실정법상 규범통제의 유형 ····································································13
(가) 추상적 규범통제와 구체적 규범통제 ·············································13
(나) 법규헌법소원과 재판헌법소원 ························································14
(다) 기타 ·································································································14
3. 추상적 규범통제의 제도적 의의 ········································································14
가. 개념의 형성과 제도의 정착 ·········································································14
나. 추상적 규범통제의 성격 ··············································································15
(1) 객관적 통제절차 ····················································································15
(2) 사법작용인가 입법작용인가 ···································································17
(3) 보충성 부정 ···························································································18
다. 추상적 규범통제의 헌법적 기능: 헌법질서의 보호와 의회 소수파의 보호 ··18
라. 대표적 판례 ··································································································20
(1) 제2공영방송에 관한 주간협약에 따른 방송국 감사위원회 구성 사건 ····20
(2) 항공안전법 사건 ····················································································21
(3) 낙태죄 사건 ···························································································23
4. 다른 제도와의 비교 및 관계 ·············································································24
가. 기관쟁의(Organstreit)와 추상적 규범통제 ················································24
(1) 기관쟁의와 규범통제절차 ······································································24
(2) 기관쟁의와 추상적 규범통제의 관계 ····················································25
(3) 주관적 요건(심판청구권자)과 정치세력관계 ·········································25
나. 구체적 규범통제와 추상적 규범통제 ···························································26
(1) 구체성과 추상성 ····················································································26
(2) 심사청구권자 ··························································································26
(3) 심판청구의 대상과 사유 ········································································27
(4) 소결 ········································································································27
다. 헌법소원과 규범통제 ····················································································28
라. 공통점 ···········································································································28
마. 행정법원의 추상적 규범통제 ·······································································29
바. 법관에 고유한 부수적 규범통제권한 ···························································29
Ⅲ. 추상적 규범통제 절차 / 31
1. 심판청구의 적법성요건 ······················································································31
가. 심판청구권자 ································································································31
(1) 연방정부 ·································································································32
(2) 주정부 ····································································································32
(3) 연방의회 의원 정수의 1/4 ···································································32
(가) 개정의 배경 ····················································································33
(나) 정족수 판단 ····················································································34
나. 심사대상(심판청구대상) ················································································35
(1) 존재하는 규범 ························································································35
(2) 연방법 또는 주법 ··················································································37
(가) 연방법 ·····························································································37
1) 기본법 개정법률을 포함한 기본법규정 ········································37
2) 계속 연방법으로서 효력을 갖는 통일조약 ···································38
3) 형식적 연방법 ················································································38
4) 법규명령 ·························································································38
5) 자치법규 ·························································································39
(나) 주법 ·································································································39
1) 주헌법규정 ·····················································································39
2) 형식적 주법률 ················································································39
3) 주차원의 법규명령과 자치법규 역시 추상적 규범통제의 대상이
 됨은 연방차원에서와 같다 ·····························································39
(3) 부적법한 심사대상 ·················································································39
(가) 국내 법질서에 전혀 영향을 미치지 않는 외국 법규범 ················40
(나) 국제법 ·····························································································40
(다) 초국가적(supranational) 법 특히 유럽법 ····································40
(라) 구동독법 ··························································································40
(마) 행정규칙 ··························································································40
다. 심판청구사유 ································································································41
(1) 기본법 제93조 제1항 제2호의 사유: 견해차이 또는 의문 ·················41
(2) 기본법 제93조 제1항 제2호와 연방헌법재판소법 제76조 제1항의 관계···42
(3) 연방헌법재판소법 제76조 제1항의 두 유형 ········································44
(가) 제1호에 따른 심판청구사유 ···························································44
(나) 제2호에 따른 심판청구사유 ···························································45
1) 규범확인절차의 의의: 규범해석에 대한 통제 ······························45
가) 규범해석 통제의 필요성 ···························································45
나) 법률개정을 통한 해석교정의 문제점 ·······································46
다) 구체적 규범통제와의 관계 ·······················································47
라) 재판소법 제76조 제1항 제1호와 제2호의 적용범위 ··············47
2) 대상규범의 부적용 ·········································································49
가) 부적용의 개념 ···········································································49
나) 합헌적 해석과 규범의 부적용 ··················································49
3) 각 기관의 부적용 ··········································································50
가) 법원의 부적용 ···········································································50
나) 행정청의 부적용 ·······································································52
다) 연방 또는 주 헌법기관의 부적용 ············································53
라. 객관적 해명의 이익 ·····················································································53
마. 기타 ··············································································································55
(1) 형식 ········································································································55
(2) 기판력의 존재 ························································································56
2. 추상적 규범통제절차에서의 심리 ······································································56
가. 심사척도와 심사범위 ····················································································56
(1) 심사척도로서의 기본법 ··········································································57
(2) 하위연방법령에 대한 심사척도 ·····························································57
(3) 주법에 대한 심사척도 ···········································································60
(4) 심판대상(범위) ·······················································································60
나. 심판청구인의 절차상 지위 ···········································································62
3. 결정의 형식과 효력 ····························································································63
가. 법 제78조 ·····································································································63
(1) 법 제78조의 구조와 맥락 ·····································································63
(가) 제78조 제1문의 원칙 ·····································································63
(나) 제78조 제2문의 예외 ·····································································63
(다) 제78조의 맥락 ················································································64
(2) 제78조 제1문의 불완전성 ·····································································64
나. 무효선언 ·······································································································65
(1) 위헌규범의 원칙적 효과: 무효 ······························································65
(가) 무효선언의 의미 ·············································································65
(나) 무효선언의 법률효력 ······································································66
(다) 무효결정의 내용 ·············································································66
(2) 무효선언의 범위 ····················································································67
(가) 전부무효선언과 부분무효선언의 기준 ···········································67
1) 전부무효선언 ··················································································67
2) 부분무효선언 ··················································································68
가) 양적 부분무효선언 ····································································68
나) 질적 부분무효선언 ····································································68
다) 부분무효와 부분불합치 ····························································68
(나) 법 제78조 제2문에 따른 결정대상의 확대 ···································68
다. 규범의 불합치 내지 위헌선언과 그 보충제도 ············································70
(1) 무효법리에 대한 재검토 ········································································70
(2) 불합치선언의 의의 ·················································································71
(가) 불합치선언으로 인한 적용불가의 근거 ·········································71
(나) 불합치선언: 법효과 관리의 기반 ···················································72
(3) 계속효명령(Weitergeltensanordnung) ···············································72
(가) 의의: 적용장애의 극복 ···································································72
(나) 근거 및 필요성 ···············································································72
(다) 연방헌법재판소의 결정주문과 권력분립 ········································73
(라) 결정의 내용과 범위 ········································································73
(4) 입법명령으로서의 촉구결정 ···································································74
(가) 촉구결정의 태양 ·············································································74
(나) 촉구결정의 가능성 ··········································································75
(다) 불이행에 대한 제재 ········································································75
(5) 집행명령 ·································································································75
라. 법 제35조의 집행명령에 의한 규범대체적 경과규정 ·································76
(1) 법 제35조의 집행개념: 법효과관리(Rechtsfolgenmanagement)의 기반····76
(2) 연방헌법재판소의 긴급입법 ···································································77
(가) 계속효명령과의 구분 ······································································77
(나) 형법을 통한 헌법적 법익의 보호 ··················································77
마. 헌법합치적 해석: 규범내용의 위헌적 요소에 대한 질적 일부무효 ···········78
(1) 연방헌법재판소와 일반법원의 역할분배 ···············································78
(2) 결정의 효력 ···························································································79
(가) 연방헌법재판소의 지위 ···································································79
(나) 결정의 법률효력 ·············································································79
(다) 일반법원의 기속 ·············································································80
바. 합치선언(규범확인) ·······················································································80
Ⅳ. 결: 추상적 규범통제 도입문제 / 82
1. 추상적 규범통제에 대한 비판론 검토 ·······························································82
가. 정치적 문제의 사법적 해결 ·········································································82
나. 문제해결의 추상성 ·······················································································84
2. 도입의 필요성 ·····································································································85
가. 주관적 소송의 보완 ·····················································································85
나. 법률의 기능변화와 행정입법과의 역할분담 ················································85
다. 날치기통과 ····································································································86
3. 심판청구권자 ······································································································87
4. 제도 도입의 실효성 조건 ···················································································88
❚참고문헌 ····································································································································90

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