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평등정명론

평등정명론 (Loan 6 times)

Material type
단행본
Personal Author
정주백. 鄭柱白
Title Statement
평등정명론 / 정주백
Publication, Distribution, etc
대전 :   충남대학교출판문화원,   2019   (2020 2쇄)  
Physical Medium
389 p. ; 25 cm
기타표제
한자표제: 平等正名論
ISBN
9791165030025
General Note
부록: 혼돈에 빠진 평등론  
색인수록  
000 00000nam c2200205 c 4500
001 000046000425
005 20200914111141
007 ta
008 190926s2019 tjk MB 001c kor
020 ▼a 9791165030025 ▼g 93360
040 ▼a 211009 ▼c 211009 ▼d 211009
041 0 ▼a kor ▼b eng
082 0 4 ▼a 342.519 ▼2 23
085 ▼a 342.53 ▼2 DDCK
090 ▼a 342.53 ▼b 2019z14
100 1 ▼a 정주백. ▼g 鄭柱白
245 1 0 ▼a 평등정명론 / ▼d 정주백
246 0 ▼i 한자표제: ▼a 平等正名論
260 ▼a 대전 : ▼b 충남대학교출판문화원, ▼c 2019 ▼g (2020 2쇄)
300 ▼a 389 p. ; ▼c 25 cm
500 ▼a 부록: 혼돈에 빠진 평등론
500 ▼a 색인수록
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 2019z14 Accession No. 111815332 Availability Available Due Date Make a Reservation Service B M
No. 2 Location Main Library/Law Library(Books/B1)/ Call Number 342.53 2019z14 Accession No. 511043098 Availability Available Due Date Make a Reservation Service B M

Contents information

Book Introduction

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.


Information Provided By: : Aladin

Author Introduction

정주백(지은이)

서울대학교 경영학과 졸업 검사 - 헌법연구관 日本一橋大學 法學硏究科 博士後期課程 修了 一橋大學 客員硏究員 UC Berkeley Visiting Scholar 한국헌법학회부회장 한국공법학회부회장 현재 충남대학교 법학전문대학원 교수 저서 공법 사례형, 法文社, 2016(共著) 平等正名論, 충남대학교출판문 화원, 2019 憲法記事, 박영사, 2021

Information Provided By: : Aladin

Table of Contents

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

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