상세정보

헌법 제11조가 정하고 있는 ‘평등’이 무엇을 의미하는가를 다루는 책이다. 철학에서 사용하는 평등과 법학에서 사용하는 평등의 내용이 다를 수 있다. 헌법의 평등과 개별 법률의 평등도 그 내용이 다를 수 있다. 오로지 우리 헌법 제11조의 평등 문제만 다루었다. 막연하게 논하지 않고 구체적인 문제들을 염두에 두고 따져 보았다.

- 혼돈에 빠진 평등, 정명에 이르는 길!
- 혼돈에 빠진 평등, 평등을 구하는 새로운 생각

이 책은 우리 헌법 제11조가 정하고 있는 ‘평등’이 무엇을 의미하는가를 다루었다. 평등 문제를 철학적으로 다루지 않았다. 법 중에서도 우리 헌법이 정하고 있는 평등 문제만 다루었다. 철학에서 사용하는 평등과 법학에서 사용하는 평등의 내용이 다를 수 있다. 헌법의 평등과 개별 법률의 평등도 그 내용이 다를 수 있다. 이 책은 오로지 우리 헌법 제11조의 평등 문제만 다루었다. 막연하게 논하지 않고 구체적인 문제들을 염두에 두고 따져 보았다.
결과적으로 이 책은 기존의 학설과 판례와는 전혀 다른 결론에 도달했다. 기존의 학설과 판례가 아무런 의심 없이 받아들이는 상대적 평등설, 입법자 구속설, 예시적 열거설 등을 하나 하나 검토했다. 우리 헌법 상의 평등은 그렇게 이해되어질 수 없다.
우리 헌법상의 평등은 ‘성별’, ‘종교’, ‘사회적 신분’을 구별 표지(Merkmal)로 사용하는 것을 금하고 있을 뿐이다. 그렇게 이해하면 필요하고도 충분하게 우리 헌법상의 평등을 이해한 것이다. 이 뜻을 전하는데 40만자를 썼다.

정보제공 :

서문 ············································································································· 4
제1장 導入
I. 문제의 제기 ····························································································· 32 II. 개략적 논지 ··························································································· 41 1. 입법자 구속? ···························································································· 41 2. 상대적 평등설의 허구 ·············································································· 43 3. ‘같은 것은 같게, 다른 것은 다르게’ 처우하는 것이 평등이라는 학설에 대한 비판
··················································································································· 44
4. 헌법 제11조 제1항 후문에 게기된 사유의 성격 ·········································· 45
5. 심사기준 ·································································································· 47
6. 소결론 ····································································································· 48
III. 연구의 범위 ·························································································· 49
IV. 연구의 방법 ·························································································· 49
V. 용어 ······································································································· 50
VI. 법률 차원의 평등개념과의 관계 ····························································· 54
VII. 결론 ····································································································· 56
제2장 相對的 平等說 批判
Ⅰ. 문제의 제기 ·························································································· 60
Ⅱ. 학설과 판례 ·························································································· 61
1. 도입 ········································································································· 61
2. 例外의 許否로 구분하는 입장 ···································································· 62
3. 處遇의 內容으로 구분하는 입장 ································································· 64
4. 兩者를 混用하는 입장 ··············································································· 68
Ⅲ. 각 학설의 내용 ······················································································ 72
1. 절대적 평등설 ·························································································· 72
2. 상대적 평등설 ·························································································· 75
3. 소결론 ····································································································· 77
Ⅳ. 각 학설의 심사방법 ··············································································· 79
1. 절대적 평등설 ·························································································· 79
2. 제1종 상대적 평등설 ················································································ 79
3. 제2종 상대적 평등설 ················································································ 80
4. 판례에 따른 심사방법 ·············································································· 83
5. 검토 ········································································································· 91
V. 결론 ······································································································· 93
제3장 第2種 相對的 平等說 批判
I. 들어가는 말 ····························································································· 96
II. 철학적 관점에서의 비판 ········································································· 97
1. 도입 ········································································································· 97
2. 空虛 ········································································································· 98
3. 진리? ······································································································ 101
4. 개방성·유연성 ······················································································ 103
5. 不知 ········································································································ 104
6. 矛盾 ········································································································ 106
7. 완벽? ······································································································ 108
8. 무의미 ···································································································· 109
9. 평등에서 차별로 ····················································································· 110
III. 법학적 관점에서의 비판 ······································································ 111
1. 들어가는 말 ···························································································· 111
2. 헌법 제11조 제1항 ·················································································· 113
3. 計量 ········································································································ 118
4. 인간으로서의 ‘같음’, 그리고 완벽하게 ‘다름’ ··········································· 119
5. 다르면 다르게 처우하여야 하는가? ························································· 120
IV. 실천적 난점 ? 판례 비판 ······································································ 123
1. 심사의 방법 ···························································································· 123
2. 기준의 부당성 ························································································ 124
3. 판례의 혼선 ···························································································· 126
V. 폐해 ····································································································· 130
1. 헌법을 대체? ·························································································· 130
2. 헌법 조항의 통일적 해석 ········································································ 134
VI. 결론 ···································································································· 135
제4장 審査 基準 批判
I. 문제의 제기 ··························································································· 138
II. 판례의 변화 ·························································································· 139
1. 도입 ······································································································· 139
2. 제대군인가산점 사건 이전 ······································································ 139
3. 제대군인가산점 사건 ·············································································· 141
4. 제대군인가산점 사건 이후의 결정 ··························································· 143
5. 병역법 사건과 그 이후 ············································································ 147
6. 소결론 ···································································································· 149
III. 자의성 심사의 정당성 ·········································································· 150
1. 평등조항의 성격과 현상 ········································································· 150
2. 비판 ······································································································· 154
3. 괴리의 이유 ···························································································· 156
IV. 심사척도 선택 기준의 타당성 ······························································ 159
. ‘헌법에서 특별히 평등을 요구하는 경우’ ················································· 160
2. ‘관련 기본권에 대한 중대한 제한을 가하는 경우’ ····································· 166
V. 결론 ····································································································· 172
제5장 例示的 列擧說 批判
I. 문제의 제기 ··························································································· 176
II. 학설과 판례 ·························································································· 177
1. 학설 ······································································································· 177
2. 판례 ······································································································· 178
III. 전문과 후문의 관계 ············································································· 180
1. 도입 ······································································································· 180
2. 전문의 성격 ···························································································· 180
3. 후문의 독자성 ························································································ 182
4. 입법례 ···································································································· 184
5. 소결론 ···································································································· 185
IV. 예시적 열거설의 원형과 비판 ······························································ 186
1. 예시적 열거의 원형 ················································································ 186
2. 비판 ······································································································· 189
V. 법의 일반성 ·························································································· 195
VI. 다른 개념들과의 관계 ·········································································· 199
1. 간접차별 ································································································ 199
2. 사회적 신분 ···························································································· 201
3. 입법자 구속설 ························································································ 202
VII. 결론 ··································································································· 203
제6장 間接差別 槪念 批判
Ⅰ. 문제의 제기 ························································································· 208
Ⅱ. 사건의 개요와 판단 ············································································· 209
1. 사건의 개요 ···························································································· 209
2. 판단 ······································································································· 210
Ⅲ. 헌법적 차원의 간접차별과 법률차원의 간접차별 ·································· 212
1. 헌법 차원의 간접차별 ············································································· 212
2. 법률 차원의 간접차별 ············································································· 213
Ⅳ. 간접차별 개념의 논리적 기초(예시적 열거설과 간접차별) ···················· 216
1. 들어가는 말 ···························································································· 216
2. 학설과 판례 ···························································································· 216
3. 검토 ······································································································· 218
Ⅴ. 심사기준의 문제 ·················································································· 221
Ⅵ. 차별의 개념과 간접차별 ······································································ 223
Ⅶ. 간접차별 관념의 유용성? ····································································· 227
Ⅷ. 전환의 일관성 ····················································································· 230
1. 도입 ······································································································· 230
2. 사례 ······································································································· 230
3. 소결론 ···································································································· 238
Ⅸ. 결론 ···································································································· 238
제7장 立法者 拘束說 批判
I. 문제의 제기 ··························································································· 242
II. 전제되는 논의 ······················································································ 243
1. ‘무엇이’ 입법자를 구속하는가 ································································· 243
2. 누가 ‘입법자’인가 ··················································································· 245
3. ‘법을 평등하게 집행한다’는 것의 의미와 사례 ········································· 247
III. 입법자 구속설의 논거와 비판 ······························································ 259
1. 입법자 비구속설의 논거 ········································································· 259
2. 입법자 구속설의 논거에 대한 비판 ························································· 259
3. 입법자 비구속설의 적극적 논거 ······························································ 265
IV. 다른 학설과의 관계 ············································································· 267
1. 상대적 평등설과 입법자 구속설 ······························································ 267
2. 자의성 심사와 입법자 구속설 ································································· 269
3. 입법자 구속설과 헌법 제11조 제1항 후문 사유의 해석 ····························· 271
V. 결론 ····································································································· 273
제8장 兵役義務에 관한 憲裁 決定 分析
Ⅰ. 서론 ···································································································· 276
Ⅱ. 사건의 내용 ························································································· 277
1. 사건의 개요와 검토 대상 법률조항 ························································· 277
2. 적법성 관련 판시 ···················································································· 278
3. 본안 관련 판시 ······················································································· 279
Ⅲ. 절차법적 문제 ····················································································· 281
1. 기본권 침해가능성 ················································································· 281
2. 직접성 ···································································································· 286
3. 청구기간 ································································································ 291
4. 심판청구의 이익 ····················································································· 295
5. 기타 ······································································································· 306
IV. 차별의 존부 문제 ················································································· 307
1. 도입 ······································································································· 307
2. 헌법 제11조 제1항의 평등 ······································································· 308
3. 헌재의 입장 ···························································································· 310
4. 합리적 차별을 허용하는 것이 평등이라는 견해의 문제 ···························· 312
5. 이 사건의 경우 ······················································································· 315
6. 검토 ······································································································· 316
7. 소결론 ···································································································· 319
V. 정당화 문제 ·························································································· 321
1. 심사기준 ································································································ 321
2. 후문 사유와 심사기준 ············································································· 323
3. 차별 관념과 심사기준 ············································································· 325
VI. 결론 ···································································································· 327
제9장 새로운 觀點 - 結論을 갈음하여
I. 견해 ······································································································ 332
II. 논거 ····································································································· 337
1. 기독교적 평등 ························································································ 337
2. 킹 목사의 연설 ······················································································· 340
III. 도해 ···································································································· 342
IV. 무엇이 달라지는가 ·············································································· 347
V. 결론 ····································································································· 348
부록 혼돈에 빠진 평등론
혼돈에 빠진 평등론 ··················································································· 356
찾아보기 ··································································································· 387