Detail View

우리 나라 헌법재판소 판례를 분석하였다. 추상적으로 다루지 않고 구체적인 문제들을 앞에 두고 그것들이 어떤 문제점을 가지고 있는지를 분석하였다. 구체적인 사건으로는 관습헌법 사건과 양심적 병역거부 사건을 다루었다.

민주주의는 헌법재판소 앞에서 안전한가?

[ 서적소개 ]

이 책은 우리 나라 헌법재판소 판례를 분석하였다. 추상적으로 다루지 않고 구체적인 문제들을 앞에 두고 그것들이 어떤 문제점을 가지고 있는지를 분석하였다.
구체적인 사건으로는 관습헌법 사건과 양심적 병역거부 사건을 다루었다.
모두에서 다룬 관습헌법 사건은 행정수도 이전을 위해 제정한 법률을 위헌이라 결정한 사건이다. 이 결정의 쟁점 중 관습헌법의 인정 여부에 관한 학술적 논의가 많았지만, 국민투표권 침해 문제에 대해서는 다루어지지 아니하였다. 이 쟁점을 본격적으로 다룬 유일한 논문이다.
두 번째로 이른바 양심적 병역 거부 사건을 다루었다. 이 결정을 두고 인권정책적 측면에서 찬부를 논하는 논의는 많지만 헌재가 과연 이 문제를 다룰 수 있는 권한이 있었는가에 대한 논의는 없는 것 같다. 필자는 헌재가 이 문제를 다룰 권한이 없는 상황에서 이 문제를 다루었고 위헌으로 결정하였다고 본다.
조금 추상화 수준을 높여서 재판의 전제성, 직접성 등 헌법재판 이론을 다루었다. 모두 필자의 독창적 관점을 제시하였다. 이것들이 논리에 정합하게 작동하고있지 아니함을 논증하였다.
마지막으로는 우리나라 헌법재판제도를 소개하는 외국어로 된 글을 실었다. 한국의 헌법재판제도에 대해 궁금해 하는 외국 학자가 많으나 그 궁금증을 해소해 줄 자료는 빈약한 실정이다. 여기에 실린 글들이 도움을 줄 것이다.

Information Provided By: :

서 문 ··················································13

第1章 지금, 대한민국의 수도는 어디인가? ···················17
- 수도이전 위헌 결정의 역설 -
I. 들어가는 말 ·············································19
II. 국민투표권의 침해 여부에 관한 헌재의 판단 ················20
1. 문제의 소재 ··········································20
2. 국민투표권 침해를 인정한 헌재의 논거 ···················22
III. 검토 ··················································24
1. 이 사건 법률로써 수도가 이전되었나? ····················24
2. 법률로써 헌법이 개정될 수 있는가? ·····················28
3. 이 사건 법률로써 헌법은 과연 개정되었는가? ·············38
4. 이 사건 법률이 위헌으로 결정될 수 있는가? ··············39
5. 이 사건 법률에 대한 위헌결정은 헌법의 효력에 영향을 미칠 수 있는가? ··· 40
IV. 결론 ··················································42
第2章 이른바 양심적 병역거부 관련 헌법재판소 결정에 관한 검토
···················································45
Ⅰ. 서론 ··················································47
Ⅱ. 전제되는 논의 ·········································48
1. 무엇이 병역인가? ·····································48
2. 청구인들의 주장 ······································54
3. 소결론 ···············································57
Ⅲ. 대상성 문제 - 진정입법부작위와 부진정입법부작위의 구별 문제 ·····57
1. 문제의 제기 ··········································57
2. 기준 ·················································58
3. 이 사건의 경우 ·······································62
4. 소결론 ···············································65
Ⅳ. 재판의 전제성 문제 ·····································66
1. 문제의 제기 ··········································66
2. 적용 ·················································66
3. 다른 내용의 재판 ·····································68
4. 소결론 ···············································74
Ⅴ. 결론 ··················································75

第3章 2006헌마328 병역법 사건에 관한 절차법적 검토 ·········77
Ⅰ. 서론 ··················································79
Ⅱ. 사건의 내용 중 절차법에 관련된 부분 ·····················80
1. 사건의 개요와 검토 대상 법률 조항 ······················80
2. 헌재 결정 중 적법성 판단 부분 ·························81
Ⅲ. 연구 ··················································82
1. 기본권 침해 가능성 ····································82
2. 직접성 ···············································88
3. 청구기간 ·············································94
4. 심판청구의 이익 ······································97
5. 기타 ···············································109
Ⅳ. 결론 ·················································111

第4章 재판의 전제성에 관한 관견 ···························113
I. 들어가는 말 ···········································115
II. 적용될 것 ·············································117
1. 사례(헌재 2011. 10. 25. 2010헌바476) ·················117
2. 검토 ···············································118
III. 이유를 달리하는 경우 ··································130
1. 헌재의 결정례 ·······································130
2. 검토 ···············································134
IV. 재판의 내용과 효력에 관한 법적 의미가 달라지는 경우 ·····136
1. 사례 ···············································136
2. 검토 ···············································140
V. 여론 - 표현 자체의 문제 ································146
1. 들어가는 말 ·········································146
2. ‘원칙적으로’ ·········································147
3. ‘원칙’과 ‘예외’의 관계 ································148
4. ‘주문이나 결론이 달라지는 경우’와 ‘재판이 가지는 법적 의미가 달라지는 경우’의 관계 ·································148
5. 기타 ···············································149
VI. 결론 ·················································150

第5章 재판의 전제성 중 ‘재판이 가지는 법적 의미를 달리하는 경우’라는 요건의 필요성 ························································································ 151
I. 서론 ··················································153
II. 사건의 개요와 판단 ····································154
1. 사건의 개요와 심판의 대상 ····························154
2. 헌재의 판시 ·········································155
III. 일반론 ···············································156
1. 논의의 전제 ·········································156
2. 판례의 흐름 ·········································158
3. 92헌가8 사건의 판시 분석 ····························172
IV. 대상결정에 대한 평가와 새로운 입론 ·····················175
1. 평가 ···············································175
2. 입론 ···············································179
V. 결론 ·················································181

第6章 형벌조항에 대한 위헌 결정으로 인한 재심의 범위 ·······183
I. 서론 ··················································185
II. 헌재법 제47조 제3항 단서의 의의 ························186
1. 문제의 제기 ·········································186
2. 헌재법 제47조 제4항의 해석 ···························188
3. 헌재법 제47조 제3항 단서의 재판의 전제성 ··············194
4. 헌재법 제47조 제3항과 제4항의 관계 ···················196
5. 소결론 ··············································204
III. 소급효 제한의 기준 ····································206
1. 도입 ···············································206
2. 대법원의 입장 ·······································207
3. 검토 ···············································207
IV. 법률에 대한 헌재법 제68조 제1항에 의한 헌법소원 ········211
1. 도입 ···············································211
2. 차단효 ··············································212
3. ‘위헌’ 결정? ·········································215
V. 결론 ·················································216

第7章 형사재판 중 적용법령에 대해 헌법소원을 제기하였을 때의 직접성 문제 ········································································································ 219
I. 도입 ··················································221
II. 사건의 개요와 헌재의 판단 ······························222
1. 사건의 개요 ·········································222
2. 헌재의 판단 요지 ····································223
III. 연구 ·················································225
1. 형벌조항으로 인한 기본권 침해의 내용 ··················225
2. 직접성 원칙의 적용 ··································234
IV. 결론 ·················································247

第8章 한국의 위헌심사 ····································249
I. 서론 ··················································251
II. 관할 ·················································252
1. 서론 ···············································252
2. 내용 ···············································252
3. 통계 ···············································256
III. 통치구조 안에서의 위치 ································257
1. 헌재의 성격 ·········································257
2. 구성 ···············································257
3. 국회와의 관계 ·······································258
4. 정부와의 관계 ·······································258
IV. 법원과의 관계 ········································259
1. 서론 ···············································259
2. 수평적 관계 ·········································259
3. 재판소원 문제 ·······································260
4. 명령 · 규칙에 대한 위헌심사 문제 ······················261
5. 변형결정의 문제 ·····································262
V. 위헌 결정의 효력 ······································265
1. 법률의 규정 ·········································265
2. 一般效··············································266
3. 違憲 決定의 時的 效力································266
4. 羈束力··············································267
VI. 미래의 전망 ··········································268
1. 서론 ···············································268
2. 헌법해석의 통일성 보장책 ·····························269
3. 재판소의 구성 ·······································270
4. 관할 ···············································271
V. 결론 ·················································272

第8-1章 韓?の違憲審査制度···························275
I. 序論··················································277
II. 管轄·················································278
1. 序論···············································278
2. ?容···············································283
3. 統計···············································283
III. 統治構造の中における位置付け···························283
1. 憲裁の性格··········································283
2. 構成···············································284
3. ??との?係········································284
4. 政府との?係········································285
IV. 法院との?係·········································286
1. 序論···············································286
2. 水平的?係··········································286
3. 裁判訴願問題········································287
4. 命令ㆍ規則に?する違憲審査問題·······················289
5. ?形決定の問題······································290
V. 違憲決定の?力········································292
1. 法律の規定··········································292
2. 一般?··············································293
3. 違憲決定の時的?力··································293
4. 羈束力··············································295
VI. 未?への展望·········································295
1. 序論···············································295
2. 憲法解?の統一性保障策·······························297
3. 裁判所の構成········································298
4. 管轄···············································299
V. 結論·················································300

第8-2章 ??????制度·····························303
Ⅰ. ??·················································305
Ⅱ. 管?·················································305
1. ??···············································305
2. ?容···············································306
3. ??···············································308
Ⅲ. ?治??中位置·······································308
1. ?裁的性?··········································308
2. ??···············································309
3. ???的?系········································309
4. ?政府的?系········································310
Ⅳ. ?法院的?系·········································310
1. ??···············································310
2. 水平?系············································311
3. 裁判????········································311
4. ?命令、??的??????···························311
5. ?形判?制度的??··································312
V. ??判?的效力········································313
1. 法律?定············································313
2. 效力···············································314
3. ??判?的??效力··································314
4. ?束力··············································315
VI. 未?瞻望·············································315
1. ??···············································315
2. ?法解??一性的保?方法·····························316
3. 裁判所的?成········································317
4. 管?···············································318
V. ??·················································318

第9章 韓?の憲法裁判の現況と展望··························321
1. 憲法裁判の意義········································323
2. 憲法裁判機?の分類····································327
3. 韓?の憲法裁判所······································329
4. ?? - 日本への示唆···································342
5. 結論·················································347