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공무원/군무원 | 7/9급

2021 황남기 헌법기본서

2021 황남기 헌법기본서

교재 상세 안내

머리말
헌법을 공부하는 이유는 점수를 잘 받기 위해서입니다. 그러면 어떤 조건을 갖추어야 할까요?
첫째, 헌법을 잘 이해하면 됩니다. 그러나 헌법을 잘 이해하는 것은 거의 불가능에 가깝습니다.
사법시험 수험생을 비롯해 수 많은 수험생을 보아왔지만 헌법을 잘 이해해서 점수를 잘 받은 수험생은 본 적이 없습니다. 그건 저도 마찬가지입니다. 헌법을 강의하면서도 3년이 지나도록 헌법을 거의 이해하지 못했습니다. 그러면 우리가 할 수 있는 건 무엇일까요? 문제를 풀기 위한 어느 수준의 이해입니다. 문제를 풀려면 이해가 필요한 문제가 있긴 합니다. 역으로 문제를 통해 이해 수준을 결정해야 합니다. 이해 수준을 헌법을 기준으로 하면 학문으로서 헌법 이해를 요구하게 됩니다. 이것은 누구도 도달해 보지 못한 목표가 될 수밖에 없고 결국 수많은 절망과 트라우마로 수험생의 정신을 짓누르게 될 겁니다. 이를 피하려면 문제를 통한 이해수준 결정하기 입니다. 이는 물론 좋은 문제가 많이 있어야 가능할 겁니다.
둘째, 문제를 많이 풀어야 합니다. 점수를 잘 받으려면 문제를 많이 풀어야 합니다. 적을 알고 나를 알면 위태롭지 않다는 손자의 말처럼 문제를 많이 풀어야 시험에서 위태롭지 않게 됩니다. 수능이든 어떤 시험이든 마찬가지입니다. 영원한 수험 역사의 진리입니다. 문제는 기출문제와 모의고사가 있습니다. 기출이야 누구나 쉽게 구할 수 있고 기본이 되는 문제이지만 수준이 높은 시험일수록 합격이 결정되지 않습니다. 합격선에 가 있는 수험생들은 모의고사가 결정적 작용을 합니다. 그러나 좋은 모의고사는 구하기 어렵습니다. 고민없이 대충 만드는 모의고사는 기출에 비해서 오히려 수험에 독이 됩니다. 그동안 좋은 문제에 대한 수요가 없어서 공급도 없었습니다. 경쟁이 치열하지 않았을 때에는 기출문제로 충분했습니다. 그러나 경쟁이 치열해 질수록 좋은 무기가 필요합니다. 제가 시간과 노력을 들여 좋은 모의고사를 만드는 이유입니다. 그래야 시험장에서 위태롭지 않습니다.
셋째, 암기입니다. 구슬이 서 말이라도 꿰어야 보물이 됩니다. 공부한 것을 꿰는 게 암기입니다.
구슬을 꿰지 못하면 가치가 떨어지듯이 공부한 내용을 암기하지 못하면 점수가 떨어집니다. 이해하는데 많은 시간을 쓰더라도 막상 암기가 덜된 상태로 시험장에 가면 당황하여 실수할 수 밖에 없습니다.
암기하려고 해도 암기가 안된다느니 암기해도 얼마 지나지 않아 잊어버린다고들 합니다. 그렇기 때문에 암기는 가치가 있습니다. 얻기 힘드니 가치가 있는 겁니다. 당연히 어렵습니다. 그러나 피할 수 없습니다. 경쟁에서 이기려면 힘든 것을 해야 합니다. 밥먹으면서도 암기하고, 화장실에서도 암기하고, 걸으면서도 암기하고, 책상에서도 암기하고, 지하철에서도 암기하고, 샤워실에서도 암기하고, 침대에서도 자면서 천장을 보면서도 암기해야 합니다.
넷째, 실전 모의고사입니다. 시간이 부족해서 혹은 너무 긴장해서 망한 점수에 망연자실한 경험은 누구나 한번쯤 있었을 겁니다. 시험장에서의 점수가 진짜 자기 점수입니다. 시험장은 화룡정점하는 시간입니다. 하지만 ‘열심히만 하면 합격하겠지’라는 생각으로 시험장에 갔다간 용을 다 그리고는 용눈에 점을 찍지 않는 우를 범할 수 있습니다. 시간 재면서 모의고사 보는 훈련을 생활화해야 합니다.
다섯째, 제일 중요한 정신 모으기입니다. 생활과 시간을 합격에 온전히 바쳐야 합니다.
“아하 진인사 대천명, 쌍팔년도 아니고 무슨”이라는 반응도 있을 법합니다. 고려 광종 때 과거 시험이 도입된 이래 변치 않은 합격생의 덕목은 ‘생활의 단순화’입니다. 하지만 실천하기가 갈수록 어려워지고 있습니다. 게임, 핸드폰, 술 뿐 아니라 4년 마다 찾아 오는 수험생들의 최대의 적 ‘월드컵’ 그리고 코로나 19 등. 우리의 주의를 끌고 집중력을 떨어 뜨리는 요소가 많이 있습니다. 그러나 경쟁이 치열해지고 있는 수험 환경에서 빨리, 좋은 점수로 합격하려면 단순한 합격의 공리에 충실할 수 밖에 없습니다. 여러분의 건투를 빕니다.
헌법 교재니 헌법 공부방법에 대해서도 말을 해야겠습니다.
문제 난도는 꾸준히 높아 질 수 밖에 없습니다. 널뛰기도 있겠지만은 추세는 난도 상향입니다.
굳이 이유를 설명하는 것조차도 민망한 일입니다. 저도 시험 끝나고 기출 문제를 확인하는 게 두렵습니다. 이 지문은 책에 없고 이 지문은 있지만 이런 식으로 문제를 출제를 한 적이 없고 이를 확인하는 게 괴롭습니다. 그 날은 밥도 잘 안들어 가고 술만 잘 들어갑니다.
시험 보는 날이면 어디 숨어 버리고 싶은 심정, 시험날이라는 것을 뻔히 알지만 잊어버리고 싶은 심정은 여러분은 이해하기 힘들 겁니다. 사법시험이 그랬습니다. 그러나 이제는 변호사
시험, 7급 국가직, 소방 간부시험, 최근에 와서는 비상 기획관 시험마저도 그렇게 되어 버렸습니다. 안심할 수 있는 시험은 5급 시험과 법원 서기보 시험 뿐입니다.
여러분에게 헌법이 쉽다는 과거의 관념이 있다면 빨리 버리시기 바랍니다.
헌법이 왜 어렵게 되었을까요?
그 밑바닥에는 변별력 확보라는 시험기관의도와 출제자의 문제내는 능력이 있습니다. 경쟁이 치열해지면 변별력으로 합격과 불합격을 나눌 수 밖에 없습니다. 변별력을 높이려면 기출에 없는 지문을 출제할 수 밖에 없고 시험장에서는 처음 보는 지문이라면 구구단조차도 어렵습니다. 낯선 선지가 20% 정도에 이르면 체감 난도는 급격히 높아집니다. 이정도면 한문제에 낯선 선지가 2-3개씩 들어가는 문제가 20문제 중 5개 정도는 되어 소거가 어렵게 되기 때문입니다.
그러면 왜 헌법일까요? 출제자들의 머리 속에서 꺼내서 지문을 만들지 않습니다. 판례, 법령에서 지문을 선별해서 끌어 냅니다.
형법이나 민법 대법원 판례야 그 양이 많지 않으나, 헌법재판소 판례는 중요 판례라면 판례 하나가 50페이지를 넘기기 일쑤입니다. 그러니 판례 요지 뿐 아니라 판례 전문에서 출제한다면 고를 수 있는 선지는 너무 많습니다. 변별력을 높여야 하는 필연적 이유를 고려하면 판례 전문에서 선지를 찾으면 됩니다. 그래서 최근 경향은 판례 요지를 넘어 판례의 논리적 구조를 물어보는 문제가 많아지고 있습니다. 그러다 보니 시험장에서 자신있게 답을 찾기 힘듭니다. 어중간하게 기출만으로 해결하려면 시험장에서 정신줄을 놓을 수 있습니다.
헌법은 또한 법령이 폭탄입니다. 헌법 조문도 출제되면 만만치 않고 부속 법령은 다양한 만큼 예측하기 힘들어 변별력을 높이려면 법령을 출제하면 간단합니다.
하여간 변별력을 높이기 위한 헌법 문제 출제는 그리 어렵지 않습니다.
그러면 수험생은 어떻게 준비하고 예측할 수 있을까요? 원론적인 문제로 수험생이 문제를 예측할 수 있을까요? 답은 없습니다. “그러면 너는 가능하냐?”고 묻는다면 답은 동일합니다.
그러면 “사법시험 시대에는 가능했는가?”라고 묻는다면 “그랬다”가 답입니다. “아니 그때 가능했던 게 지금은 왜 안되는가?” 그때 가능했던 이유는 아이러니하게도 1997년 외환위기였습니다. 학원 강사의 수준은 수험생이 결정합니다. 1997년 외환위기시 일자리가 정말 신기루처럼 사라졌습니다. 그래서 가장 역사적으로 뛰어났던 수험생들이 신림동에 모여 들어 그들의 위기감과 올바른 압력으로 강사들을 몰아쳐 예측 가능했습니다. 그러나 지금 수험 시장은 김빠진 맥주처럼 맹숭맹숭합니다. 시장도 축소되었고 열기는 식어 강사를 달리게 할 채찍은 사라졌습니다. 그래서 문제 예측이 더 어렵게 되어 수험생은 시험장에서 맨붕할 위험성이 높아졌습니다.
이런 상황에서 수험생은 무엇을 해야 하고, 무엇을 할 수 있을까요?
기본서 읽기가 과거보다는 더 중요해진 것은 사실입니다. 역설적이지만 중요해진 만큼 기본서의 양도 늘어나 기본서 읽기가 어려워지고 있습니다. 기본서를 읽을 때 기출문제와 같이 진행하는 것이 문제 포인트를 잡는데 확실히 도움을 줍니다. 다 이해가 다 안 되더라도 반드시 기출문제와 함께 공부해야 합니다. 기출문제 회독을 통해 기본서에 접근한다는 마인드를 가지시기 바랍니다.
변별력의 핵심은 기출에 없는 지문이나 기출을 많이 변형한 지문을 출제하는 것입니다.
이를 대비한 것은 수험생의 몫은 아닙니다. 그래서 ‘문제수준은 기출이지만 기출에 없는 문제로 구성된 모의고사’ 공부가 매우 중요합니다. 수험가가 무너진 상황이라 전 과목 이런 모의고사가 나오기는 힘듭니다. 헌법이나 행정법도 마찬가지입니다. 부족하겠지만 사법시험의 전통을 되살려 정말 퀄리티있는 문제를 꾸준히 만들어 제공할 예정입니다. 황남기 진도별 모의고사와 전범위 모의고사로 기출을 보완하는 것이 현재로서는 차악의 선택입니다. 오로지 모의고사 문제 만드는 데에만 전력을 다 기울일 예정입니다. 모의고사는 반드시 시간을 재서 시험장 상황에 가장 가까운 조건하에 반복적으로 꾸준히 풀어야 합니다. (네이버 황남기카페를 통해 새롭고 질좋은 모의고사 정보를 공유하겠습니다.)
판례공부와 법조항 모두 중요합니다. 그러나 이를 문제를 통해서 공부해야 문제인식이 되어 시험장에서 문제에 적응할 수 있습니다. 좋은 문제를 많이 여러번 반복해서 풀어보는 것은 수험생이 해야 하고 할 수 있는 가장 확실한 공부법입니다. 물론 문제를 풀고 피드백도 필요합니다. 기본서나 법령집으로 다시 체계화 할 필요가 있고 이를 다시 암기해야 합니다.
이제 정해진 일을 담담하고 일관성있게 행동으로 보여주면 점수로 보답받을 겁니다.
함께 고생합시다.
2020. 6. 14. 황 남기
황남기

○ 제27회 외무고등고시 수석합격
○ 2012년 공무원 공채시험 출제위원
○ 동국대 법대 겸임교수

전)외교부 사무관

현)황스파고시학원 헌법/행정법 대표교수
윌비스 헌법/행정법 대표교수
해커스 공무원 헌법/행정법 대표교수

주요저서
○ 황남기 행정법총론 기본서(합격캠프)
○ 황남기 행정법각론 기본서(합격캠프)
○ 황남기 행정법 기출문제집(윌비스)
○ 황남기 행정법 족보(배움)
○ 황남기 헌법시리즈(찬글)

1 헌법총론
제1장 헌법의 의의와 기능
제1항 헌법의 의의 ················································ 19
Ⅰ. 역사적 발전과정에서 본 헌법개념 ················· 19
제2항 헌법의 분류 ················································ 21
Ⅰ. 실질적 의미의 헌법과
형식적 의미의 헌법 ········································ 21
Ⅱ. 존재형식에 따른 분류:
성문헌법과 불문헌법 ····································· 22
Ⅲ. 개정방법에 의한 분류:
연성헌법과 경성헌법 ····································· 23
Ⅳ. 헌법제정주체에 의한 분류:
흠정.민정.협약.국약헌법 ······························ 23
제3항 헌법의 특성과 기능 ··································· 24
Ⅰ. 헌법의 특성 ····················································· 24
Ⅱ. 헌법의 기능 ····················································· 25
제2장 헌법의 본질과 해석
제1항 헌법조항간 위계질서 ································· 26
Ⅰ. 등가이론 ·························································· 26
Ⅱ. 칼 슈미트의 헌법과 헌법률 ···························· 26
제2항 헌법의 해석 ················································ 27
Ⅰ. 헌법해석의 의의 ·············································· 27
Ⅱ. 헌법해석의 방법 ·············································· 27
제3항 합헌적 법률해석 ········································ 28
Ⅰ. 합헌적 법률해석의 의의 ································· 28
Ⅱ. 합헌적 법률해석의 이론적 근거 ····················· 30
Ⅲ. 합헌적 법률해석의 한계 ································· 30
Ⅳ. 합헌적 법률해석의 관련 논점 ························ 33
제3장 헌법의 제정.개정과 헌법의 보호
제1항 헌법의 제정 ················································ 34
Ⅰ. 헌법제정권력의 의의 ····································· 34
Ⅱ. 헌법제정권력이론 ·········································· 34
Ⅲ. 헌법제정절차 ················································· 35
Ⅳ. 헌법제정권력의 한계 ······································· 36
제2항 헌법의 개정 ················································ 36
Ⅰ. 의의 ································································ 36
Ⅱ. 헌법개정 방법과 절차 ····································· 37
Ⅲ. 헌법개정의 한계 ·············································· 42
제3항 헌법의 변천 ················································ 47
Ⅰ. 헌법변천의 의의 ·············································· 47
Ⅱ. 헌법변천의 성립 ·············································· 47
Ⅲ. 헌법변천의 예 ················································· 48
Ⅳ. 헌법변천의 한계 ·············································· 48
제4항 헌법의 보호 ················································ 48
Ⅰ. 헌법보호의 의의 ·············································· 48
Ⅱ. 헌법의 수호자 ················································· 49
Ⅲ. 헌법보장(수호)의 방법과 유형 ························ 49
Ⅳ. 헌법보호수단으로서의 국가긴급권 ·················· 50
제5항 저항권 ························································· 52
Ⅰ. 저항권의 의의 ················································· 52
Ⅱ. 저항권에 관한 사상과 입법례 ························ 53
Ⅲ. 저항권 행사의 요건과 효과 ···························· 55
제6항 방어적 민주주의 ······································ 56
Ⅰ. 방어적 민주주의의 의의 ································· 56
Ⅱ. 방어적 민주주의의 성격과 기능 ····················· 56
Ⅲ. 방어적 민주주의의 수단 ································· 57
Ⅳ. 방어적 민주주의의 한계 ································· 58
Ⅴ. 한국헌법과 방어적 민주주의 ·························· 58

2 대한민국헌법총론
제1장 대한민국 헌정사
제헌헌법 ··························································· 61
제1차 헌법개정 ······················································ 63
제2차 헌법개정 ······················································ 64
제3차 헌법개정 ······················································ 65
제4차 헌법개정 ······················································ 66
제5차 헌법개정 ······················································ 66
제6차 헌법개정 ······················································ 67
제7차 헌법개정 ······················································ 68
제8차 헌법개정 ······················································ 69
제9차 헌법개정 ······················································ 70
제2장 대한민국의 국가형태와 구성요소
제1항 대한민국의 국가형태 ································· 71
Ⅰ. 헌법 제1조 제1항 민주공화국의 성격 ············ 71
Ⅱ. 민주공화국의 법적 성격 ································· 71
제2항 국가 ···························································· 71
Ⅰ. 사회계약론 ······················································· 71
Ⅱ. 루소 ·································································· 72
Ⅲ. 연방국가 ························································· 72
제3항 국가의 구성요소 ········································ 74
Ⅰ. 국가구성요소 ··················································· 74
Ⅱ. 주권 ·································································· 74
Ⅲ. 국민 ·································································· 76
Ⅳ. 국가의 영역 ····················································· 86
제3장 현행헌법의 기본이념
제1항 헌법전문의 의의와 내용 ···························· 88
Ⅰ. 헌법전문의 의의 ·············································· 89
Ⅱ. 헌법전문의 법적 성격 ····································· 89
제2항 국민주권의 원리 ········································ 91
Ⅰ. 국민주권원리의 의의 ······································· 91
Ⅱ. 현대헌법에서의 국민주권 ································ 91
제3항 민주주의 ····················································· 93
Ⅰ. 민주주의의 의의 ·············································· 93
Ⅱ. 다수결 원칙 ····················································· 94
제4항 민주적 기본질서 ········································ 95
Ⅰ. 민주적 기본질서의 개념 ································· 95
Ⅱ. 자유민주적 기본질서 ······································· 95
Ⅲ. 민주적 기본질서의 위배와 효과 ····················· 96
제5항 법치주의원리 ·············································· 97
Ⅰ. 의의 ································································ 97
Ⅱ. 법치주의사상의 전개 ······································· 97
Ⅲ. 법치주의의 목적과 기능 ································· 97
Ⅳ. 법치주의 원리의 내용 ····································· 98
Ⅴ. 법치주의에서 파생되는 원리 ························· 103
Ⅵ. 법치주의원리와 민주주의,
사회국가원리와의 상호관계 ··························· 106
제6항 사회국가(복지국가)의 원리 ······················ 119
Ⅰ. 사회국가원리의 의의 ····································· 119
Ⅱ. 사회국가원리의 법적 성격 ···························· 119
Ⅲ. 사회국가원리의 한계 ····································· 120
Ⅳ. 사회국가원리와 급부청구권 ························· 120
제7항 현행헌법의 경제적 기본질서 ··················· 121
Ⅰ. 경제조항의 의의 ············································ 121
Ⅱ. 한국헌법상 경제질서 변천 ···························· 122
Ⅲ. 현행헌법의 경제적 기초 ································ 122
제8항 문화국가의 원리 ······································· 135
Ⅰ. 의의 ······························································ 135
Ⅱ. 우리 헌법상의 문화국가원리 ························· 135
제9항 국제평화주의 ············································ 138
Ⅰ. 의의 ······························································ 138
Ⅱ. 현행헌법의 국제법 질서 존중 ······················· 138
Ⅲ. 외국인의 법적지위 보장 ································ 145
제10항 통일의 원칙 ·············································· 146
Ⅰ. 영토조항과 통일조항 ····································· 146
Ⅱ. 남북관계 ························································· 148
제4장 헌법의 기본제도
제1항 제도적 보장 ·············································· 152
Ⅰ. 제도적 보장의 의의 ······································· 152
Ⅱ. 제도적 보장의 연혁 ······································· 152
Ⅲ. 제도적 보장의 성격 ····································· 152
Ⅳ. 제도적 보장의 내용 ······································· 153
Ⅴ. 제도적 보장과 기본권과의 관계 ··················· 153
제2항 정당제도 ··················································· 154
Ⅰ. 정당의 개념 ··················································· 154
Ⅱ. 정당제도의 연혁 ············································ 154
Ⅲ. 정당의 지위 ··················································· 155
제3항 현행헌법의 정당제도 ······························· 156
Ⅰ. 헌법 제8조의 규범적 의미 ···························· 156
Ⅱ. 정당설립과 등록취소 ····································· 159
Ⅲ. 정당의 권리와 의무 ······································· 164
Ⅳ. 위헌정당의 강제해산 ··································· 165
Ⅴ. 정당과 정치자금 ············································ 174
제4항 선거제도 ··················································· 180
Ⅰ. 선거의 의의 ··················································· 180
Ⅱ. 선거의 기본원칙 ············································ 181
Ⅲ. 대표제와 선거구 ············································ 188
제5항 현행헌법의 선거제도 ······························· 190
Ⅰ. 헌법 규정사항과 공선법 규정사항 ················ 191
Ⅱ. 선거제도의 기본내용 ··································· 192
Ⅲ. 각종 선거제도 ················································ 204
Ⅳ. 기탁금 ···························································· 206
Ⅴ. 공정한 선거를 위한 제도 ······························ 209
Ⅵ. 선거운동 ······················································· 214
Ⅶ. 선거에 관한 소송제도 ··································· 224
제6항 지방자치제도 ············································ 230
Ⅰ. 의의 ······························································ 230
Ⅱ. 지방자치제의 본질 ········································· 230
제7항 현행헌법상의 지방자치제도 ····················· 231
Ⅰ. 지방자치제의 연혁과 현행헌법의
지방자치관련규정 ··········································· 231
Ⅱ. 지방자치단체의 기관구성과 권한 ·················· 244
Ⅲ. 지방자치단체의 권한 ····································· 248
Ⅳ. 지방자치단체에 대한 국가적 통제 ·············· 256
제8항 군사제도 ··················································· 258
Ⅰ. 현행헌법상 군사제도 ····································· 258

3 기본권론

제1장 기본권 총론
제1항 기본권의 역사와 헌정사 ·························· 261
Ⅰ. 영국 헌정사 ················································· 261
Ⅱ. 미국의 헌정사 ················································ 262
Ⅲ. 프랑스 헌정사 ················································ 262
Ⅳ. 독일의 헌정사 ················································ 262
제2항 기본권의 전개 ·········································· 263
Ⅰ. 자연법 사상의 등장 ······································· 263
Ⅱ. 19C 기본권의 실정권성을 강조하는 입장 ···· 263
Ⅲ. 20C 기본권의 초실정성 재강조 ···················· 263
제3항 기본권의 국제적 보장 ····························· 264
Ⅰ. 배경 ······························································ 264
Ⅱ. UN주도의 인권보장 ······································· 264
제4항 기본권의 본질 ·········································· 265
Ⅰ. 법실증주의 헌법관에서 본 기본권관 ············ 265
Ⅱ. 결단주의 헌법관에서 본 기본권 ··················· 265
Ⅲ. 통합주의 헌법관에서 본 기본권관 ················ 266
제5항 기본권의 법적 성격 ································· 267
Ⅰ. 기본권과 인권 ················································ 267
Ⅱ. 주관적 공권성 ················································ 267
Ⅲ. 입법방침적 권리,
추상적 권리와 구체적 권리 ·························· 267
Ⅳ. 소극적 권리와 적극적 권리 ·························· 268
Ⅴ. 자연법적 권리와 실정법적 권리 ··················· 269
Ⅵ. 기본권의 양면성 ·········································· 270
제6항 기본권의 주체 ·········································· 272
Ⅰ. 국민 ································································ 272
Ⅱ. 외국인의 기본권 주체성 ································ 274
Ⅲ. 법인의 기본권 주체성 ··································· 278
제7항 기본권의 효력 ·········································· 282
Ⅰ. 기본권의 대국가적 효력 ······························ 282
Ⅱ. 기본권의 대사인적 효력 또는 제3자적 효력 ·· 283
제8항 기본권의 갈등 ·········································· 287
Ⅰ. 의의 ······························································ 287
Ⅱ. 기본권의 경합 (경쟁) ···································· 287
Ⅲ. 기본권의 충돌 (상충) ···································· 291
제2장 기본권의 제한과 보장
제1항 기본권 한계와 제한의 유형 ···················· 296
Ⅰ. 기본권의 보호영역과 제한의 의의 ················ 296
Ⅱ. 기본권의 내재적 한계 ··································· 296
Ⅲ. 헌법에 의한 기본권 제한 ······························ 297
Ⅳ. 법률유보에 의한 기본권 제한 ······················· 298
Ⅴ. 국가긴급권에 의한 기본권 제한 ··················· 299
제2항 법률에 의한 기본권 제한의 일반원리 ···· 299
Ⅰ. 의의 ······························································ 299
Ⅱ. 기본권 제한의 형식상 한계 ·························· 300
Ⅲ. 기본권 제한입법의 목적상 한계 ··················· 301
Ⅳ. 제한입법의 방법상 한계 ································ 302
Ⅴ. 기본권 제한입법의 내용상 한계 ··················· 307
Ⅵ. 기본권 제한의 일반원칙을 위반한 법률 ······· 307
제3항 특별권력관계와 기본권의 제한 ··············· 308
Ⅰ. 특별권력관계의 의의 ··································· 308
Ⅱ. 특별권력관계이론 ··········································· 308
Ⅲ. 기본권 제한의 형식과 기본권 제한 ·············· 309
Ⅳ. 특별권력관계와 사법적 통제 ························· 310
제4항 기본권의 침해와 구제 ····························· 311
Ⅰ. 기본권 보호의무 ············································ 311
Ⅱ. 입법기관에 의한 기본권의 침해와 구제 ······· 316
Ⅲ. 집행기관에 의한 기본권의 침해와 구제 ······· 316
Ⅳ. 국가인권위원회법 ··········································· 317
제3장 포괄적 기본권
제1항 인간의 존엄성 ·········································· 321
Ⅰ. 의의 ······························································ 321
Ⅱ. 인간의 존엄성 조항의 법적 성격 ················· 322
Ⅲ. 인간의 존엄성 조항의 주체 ·························· 322
Ⅳ. 인간의 존엄과 가치의 구체적인 내용 ·········· 323
Ⅴ. 인간의 존엄과 가치의 제한 ·························· 331
제2항 생명권 ······················································· 336
Ⅰ. 생명권의 의의 ·············································· 336
Ⅱ. 생명권 관련쟁점 ············································ 336
제3항 행복추구권 ················································ 337
Ⅰ. 의의 ······························································ 337
Ⅱ. 행복추구권의 법적 성격 및 본질 ················· 338
Ⅲ. 행복추구권의 주체 ········································· 338
Ⅳ. 행복추구권의 내용 ········································· 338
Ⅴ. 효력 ······························································ 348
Ⅵ. 제한 ······························································ 348
Ⅶ. 다른 기본권과의 관계 ··································· 349
제4항 평등권 ······················································· 366
Ⅰ. 의의 ······························································ 366
Ⅱ. 평등권의 내용 ················································ 367
Ⅲ. 헌법상의 평등권 보장조항 ···························· 370
Ⅳ. 혼인과 가족생할에서의 평등 ························· 370
Ⅴ. 평등원칙과 심사기준 ····································· 373
Ⅵ. 헌법상 평등권의 제한 ··································· 380
제4장 인신의 자유
제1항 신체의 자유 ·············································· 410
Ⅰ. 우리 헌법상의 신체의 자유조항 ··················· 410
Ⅱ. 신체의 자유의 실체적 보장 ·························· 415
Ⅲ. 신체의 자유의 절차적 보장 ·························· 450
Ⅳ. 형사피의자.형사피고인의 권리 ····················· 469
제5장 사생활의 자유
제1항 주거의 자유 ·············································· 490
Ⅰ. 주거의 자유의 의의 ····································· 490
Ⅱ. 주체 ······························································ 490
Ⅲ. 주거의 자유의 내용 ······································· 491
Ⅳ. 주거의 자유의 효력 ······································· 493
제2항 사생활의 비밀과 자유 ····························· 493
Ⅰ. 사생활의 비밀과 자유 ··································· 493
Ⅱ. 사생활의 비밀과 자유의 성격 ······················· 493
Ⅲ. 사생활의 비밀과 자유의 주체 ······················· 494
Ⅳ. 사생활의 비밀과 자유의 내용 ······················· 494
Ⅴ. 사생활 비밀과 자유의 효력 ·························· 513
Ⅵ. 사생활 비밀과 자유의 제한과 그 한계 ········ 513
Ⅶ. 사생활 비밀과 자유 관련 쟁점 ····················· 514
제3항 거주.이전의 자유 ····································· 516
Ⅰ. 거주.이전의 자유의 의의 ···························· 516
Ⅱ. 거주.이전의 자유의 주체 ······························ 517
Ⅲ. 거주.이전의 자유의 내용 ······························ 517
제4항 통신의 자유 ·············································· 522
Ⅰ. 의의 ······························································ 522
Ⅱ. 주체 ······························································ 523
Ⅲ. 통신의 자유의 내용 ······································· 523
Ⅳ. 통신의 자유의 효력 ······································· 524
Ⅴ. 통신의 자유제한과 한계 ································ 524
제6장 정신적 자유
제1항 양심의 자유 ·············································· 530
Ⅰ. 양심의 자유 ················································· 530
Ⅱ. 양심의 자유의 주체 ······································· 534
Ⅲ. 양심의 자유의 내용 ······································· 534
Ⅳ. 양심의 자유의 제한과 한계 ·························· 535
Ⅴ. 양심의 자유 관련 쟁점 ································· 536
제2항 종교의 자유 ·············································· 542
Ⅰ. 종교의 자유의 의의 ······································· 542
Ⅱ. 주체 ······························································ 542
Ⅲ. 종교의 자유와 내용 ······································· 542
Ⅳ. 종교의 자유 제한 ·········································· 546
제3항 학문의 자유 ·············································· 549
Ⅰ. 학문의 자유의 의의 ······································· 549
Ⅱ. 주체 ······························································ 549
Ⅲ. 학문의 자유의 내용 ······································· 549
Ⅳ. 대학의 자율성 (대학의 자치) ························ 552
Ⅴ. 지적재산권의 보호 ········································· 559
제4항 예술의 자유 ·············································· 560
Ⅰ. 예술의 자유의 의의 ······································· 560
Ⅱ. 예술의 자유의 내용 ······································· 560
Ⅲ. 예술의 자유의 한계와 제한 ·························· 561
제5항 언론.출판의 자유 ····································· 561
Ⅰ. 의의 ······························································ 561
Ⅱ. 언론.출판의 주체 ·········································· 563
Ⅲ. 언론.출판의 자유의 내용 ······························ 563
Ⅳ. 언론.출판의 자유의 제한과 한계 ··············· 582
제6항 집회 및 결사의 자유 ······························· 598
Ⅰ. 집회.결사의 자유의 의의 ······························ 598
Ⅱ. 집회의 자유 ··················································· 598
Ⅲ. 결사의 자유 ··················································· 612
제7장 경제적 자유
제1항 재산권 ······················································· 618
Ⅰ. 의의 ······························································ 618
Ⅱ. 재산권 보장의 내용 ······································· 627
Ⅲ. 재산권 행사의 한계 ······································· 629
Ⅳ. 재산권의 제한 ················································ 631
제2항 직업선택의 자유 ······································· 655
Ⅰ. 의의 ······························································ 655
Ⅱ. 직업의 자유 주체 ·········································· 657
Ⅲ. 직업의 자유 내용 ·········································· 658
Ⅳ. 직업선택의 자유의 이중성 ···························· 659
Ⅴ. 직업선택의 제한 ············································ 659
제3항 소비자의 권리 ·········································· 692
Ⅰ. 의의 ······························································ 692
Ⅱ. 주체 ······························································ 692
Ⅲ. 소비자 권리의 내용 ······································· 692
Ⅳ. 효력 ······························································ 693
Ⅴ. 소비자 권리의 침해와 구제 ·························· 693
제8장 정치적 권리
제1항 정치적 권리의 의의와 종류 ···················· 694
Ⅰ. 정치적 자유권 ················································ 694
Ⅱ. 피선거권 ························································· 696
제2항 국민투표권 ················································ 696
제3항 공무담임권 ················································ 700
제4항 공무원제도 ················································ 715
Ⅰ. 의의 ······························································ 715
Ⅱ. 직업공무원제도 ·············································· 716
Ⅲ. 공무원의 의무 ················································ 719
제9장 청구권적 기본권
제1항 청원권 ······················································· 724
Ⅰ. 의의 ······························································ 724
Ⅱ. 청원권의 주체 ················································ 724
Ⅲ. 청원권의 내용 ················································ 725
제2항 재판청구권 ················································ 728
Ⅰ. 재판청구권의 주체 ········································· 729
Ⅱ. 재판청구권의 내용 ········································· 729
제3항 형사보상청구권 ········································· 758
Ⅰ. 의의 ······························································ 758
Ⅱ. 주체 ······························································ 759
Ⅲ. 형사보상청구권의 성립요건 ··························· 759
Ⅳ. 형사보상청구절차와 보상내용 ······················· 760
제4항 국가배상청구권 ········································· 762
Ⅰ. 의의 ······························································ 762
Ⅱ. 국가배상청구권의 법적 성격 ························· 763
Ⅲ. 국가배상청구권과 배상책임의 주체 ·············· 763
Ⅳ. 국가배상청구권의 성립요건 ··························· 764
Ⅴ. 국가배상책임의 본질과 국가배상책임자 ······· 768
Ⅵ. 배상청구절차와 배상의 기준과 범위 ············ 770
Ⅶ. 국가배상청구권의 제한과 그 한계 ················ 772
제5항 범죄피해자구조청구권 ······························ 776
Ⅰ. 의의 ······························································ 776
Ⅱ. 범죄피해자 구조청구권의 주체 ····················· 776
Ⅲ. 범죄피해자구조청구권의 요건과 내용 ··········· 777
제10장 사회적 기본권
제1항 사회적 기본권의 의의 ····························· 780
Ⅰ. 사회적 기본권의 법적 성격 ·························· 780
Ⅱ. 자유권적 기본권과 사회적 기본권과의 관계 ·· 781
제2항 인간다운 생활을 할 권리 ························ 782
Ⅰ. 의의 ······························································ 782
Ⅱ. 인간다운 생활을 할 권리의 내용 ················· 782
제3항 교육을 받을 권리 ····································· 796
Ⅰ. 의의 ······························································ 796
Ⅱ. 내용 ································································ 796
제4항 근로의 권리 ·············································· 812
Ⅰ. 의의 ······························································ 812
Ⅱ. 주체 ······························································ 812
Ⅲ. 근로의 권리의 내용 ······································· 814
Ⅳ. 근로의 권리의 효력 ······································· 819
제5항 노동3권 (근로3권) ···································· 820
Ⅰ. 의의 ······························································ 820
Ⅱ. 단결권 ···························································· 821
Ⅲ. 단체교섭권 ····················································· 824
Ⅳ. 단체행동권 ··················································· 826
Ⅴ. 효력 ································································ 828
Ⅵ. 근로3권의 제한과 한계 ······························· 829
제6항 환경권 ······················································· 832
Ⅰ. 의의 ······························································ 832
Ⅱ. 주체 ······························································ 833
Ⅲ. 내용 ······························································ 833
Ⅳ. 환경권의 효력 ················································ 835
Ⅴ. 환경권의 한계와 제한 ··································· 836
제7항 보건권 ······················································· 838
Ⅰ. 의의 ······························································ 838
Ⅱ. 주체 ······························································ 838
Ⅲ. 보건권의 내용 ················································ 838
Ⅳ. 보건권의 제한 및 한계 ································· 838
제11장 국민의 기본적 의무
제1항 국민의 일반의무 ······································· 839
Ⅰ. 법적 성격 ····················································· 839
Ⅱ. 종류 ································································ 839
제2항 국민의 기본적 의무 ································· 840
Ⅰ. 납세의 의무 ··················································· 840
Ⅱ. 국방의 의무 ··················································· 840
Ⅲ. 교육을 받게 할 의무 ····································· 842
Ⅳ. 근로의 의무 ··················································· 843

4 통치구조론

제1장 통치구조의 본질과 근본이념
제1항 민주적 통치구조의 근본이념 ··················· 853
Ⅰ. 통치권의 민주적 정당성 ······························ 853
Ⅱ. 통치권 행사의 절차적 정당성 ·························854
제2장 통치구조의 구성원리
제1항 대의제의 원리 ·········································· 855
Ⅰ. 대의제 원리의 의의 ······································· 855
Ⅱ. 대의제의 이념적 기초 ··································· 856
Ⅲ. 정당국가적 경향과 대의제 ···························· 857
Ⅳ. 현행헌법과 대의제 ········································· 860
제2항 권력분립의 원리 ······································· 861
Ⅰ. 권력분립의 의의 ············································ 861
Ⅱ. 고전적 권력분립의 재검토와
새로운 권력분립의 모색 ································ 862
제3장 정부형태
제1항 의원내각제 ················································ 865
Ⅰ. 의원내각제의 의의 ········································· 865
Ⅱ. 각국의 의원내각제 ········································· 867
제2항 대통령제 ··················································· 868
Ⅰ. 대통령제의 의의 ············································ 868
Ⅱ. 미국 대통령제 ················································ 869
제3항 제3유형의 정부형태 ································· 871
Ⅰ. 이원집정부제 ·················································· 871
Ⅱ. 회의정부제 ····················································· 872
제4장 국회
제1항 의회주의 ··················································· 873
Ⅰ. 의회주의의 의의 ············································ 873
Ⅱ. 의회주의의 위기 ············································ 874
제2항 국회의 헌법상 지위 ································· 875
Ⅰ. 의회의 헌법상 지위의 유형 ·························· 875
Ⅱ. 입법기관 ························································· 875
Ⅲ. 국가의 최고기관성 ········································· 875
제3항 국회의 구성과 조직 ································· 876
Ⅰ. 국회의 구성원리 ············································ 876
Ⅱ. 국회의 조직 ··················································· 878
제4항 국회의 운영과 의사절차 ·························· 892
Ⅰ. 국회의 운영 ··················································· 892
Ⅱ. 국회의 의사절차에 관한 원칙 ······················· 893
Ⅲ. 정족수 ···························································· 897
제5항 국회의 입법권 ·········································· 900
Ⅰ. 입법권의 의의 ················································ 900
Ⅱ. 국회의 법률제정에 관한 권한 ······················· 900
제6항 국회의 재정에 관한 권한 ························ 919
Ⅰ. 조세입법권 ····················································· 919
Ⅱ. 예산 관련 권한 ·············································· 930
Ⅲ. 결산심사권 ··················································· 936
Ⅳ. 기타 재정 관련 권한 ····································· 936
제7항 국회의 헌법기관구성의 권한 ··················· 937
Ⅰ. 인사청문회 ··················································· 937
Ⅱ. 국회의 국가기관의 구성권 ···························· 940
제8항 국회의 국정통제권한 ······························· 941
Ⅰ. 국정통제권의 의의 ········································· 941
Ⅱ. 탄핵소추권 ····················································· 941
Ⅲ. 국회의 국정감사.조사권 ································ 951
Ⅳ. 그 밖의 국정통제권 ······································· 958
제9항 국회의 자율권 ·········································· 962
Ⅰ. 국회자율권의 의의 ······································· 962
Ⅱ. 규칙제정권 ··················································· 962
Ⅲ. 의원의 신분자율권 ········································· 963
Ⅳ. 기타 자율권 ··················································· 967
제10항 국회의원의 지위와 책임 ························ 969
Ⅰ. 국회의원의 법적 지위 ··································· 969
Ⅱ. 국회의원의 권한 ············································ 970
Ⅲ. 국회의원의 특권 ············································ 972
Ⅳ. 국회의원의 의무 ·········································· 977
제5장 대통령과 행정부
제1항 대통령의 헌법상 지위 ····························· 979
Ⅰ. 국민대표기관으로서의 지위 ··························· 979
Ⅱ. 국가원수로서의 지위 ····································· 979
Ⅲ. 집행부수반으로서의 지위 ·························· 980
제2항 대통령의 신분상 지위 ····························· 980
Ⅰ. 대통령 당선과 취임 ······································· 980
Ⅱ. 대통령의 권한대행 ········································· 981
Ⅲ. 대통령의 특권과 의무 ··································· 983
제3항 대통령의 비상적 권한 ····························· 985
Ⅰ. 긴급명령권 ····················································· 985
Ⅱ. 긴급재정.경제처분 및 명령권 ······················· 987
Ⅲ. 계엄선포권 ····················································· 990
Ⅳ. 헌법 제72조의 국민투표부의권 ····················· 995
제4항 대통령의 입법에 관한 권한 ···················· 996
Ⅰ. 헌법개정에 관한 권한 ··································· 996
Ⅱ. 법률제정에 관한 권한 ··································· 996
Ⅲ. 행정입법권 ····················································· 998
제5항 대통령의 사법에 관한 권한 ·················· 1014
Ⅰ. 위헌정당해산제소권 ····································· 1014
Ⅱ. 사면권 ·························································· 1014
제6항 대통령의 헌법기관구성권과
집행에 관한 권한 ··································· 1017
Ⅰ. 대통령의 헌법기관구성에 관한 권한 ·········· 1017
Ⅱ. 정부구성권 ················································· 1017
Ⅲ. 국군통수권 ················································· 1017
Ⅳ. 재정에 관한 권한 ········································ 1017
제7항 국무총리 ·················································· 1018
Ⅰ. 국무총리의 헌법상 지위 ······························ 1018
Ⅱ. 국무총리의 신분 ·········································· 1018
Ⅲ. 국무총리의 권한 ·········································· 1019
Ⅳ. 국무총리의 책임 ·········································· 1022
제8항 국무위원과 행정각부의 장 ···················· 1023
Ⅰ. 국무위원의 임면 ·········································· 1023
Ⅱ. 국무위원의 헌법상 지위와 책임 ················· 1023
Ⅲ. 행정각부의 장 ·············································· 1024
제9항 국무회의 ·················································· 1026
Ⅰ. 국무회의의 헌법상 지위 ······························ 1026
Ⅱ. 국무회의 구성과 운영 ································· 1027
Ⅲ. 국무회의의 심의 ·········································· 1027
제10항 대통령의 자문기관 ······························· 1029
Ⅰ. 국가원로자문회의 ········································· 1029
Ⅱ. 국가안전보장회의 ········································· 1029
Ⅲ. 민주평화통일자문회의 ·································· 1030
Ⅳ. 국민경제자문회의 ········································· 1030
Ⅴ. 국가과학기술자문회의 ·································· 1030
제11항 감사원 ··················································· 1031
Ⅰ. 의의 ···························································· 1031
Ⅱ. 감사원의 구성 ·············································· 1031
Ⅲ. 감사원의 권한 ·············································· 1032
제12항 선거관리위원회 ····································· 1036
Ⅰ. 선거관리위원회의 의의 ································ 1036
Ⅱ. 선거관리위원회의 구성 ································ 1036
Ⅲ. 선거관리위원회의 권한 ································ 1039
Ⅳ. 선거공영제 ··················································· 1040
제6장 법원
제1항 사법권 ····················································· 1044
Ⅰ. 사법권의 의의와 기능 ································· 1044
Ⅱ. 사법권의 한계 ·············································· 1045
제2항 사법권의 독립 ········································ 1049
Ⅰ. 사법권의 독립의 의의 ······························· 1049
Ⅱ. 법원의 독립 ················································· 1049
Ⅲ. 법관의 인적 독립 ········································ 1050
Ⅳ. 법관의 물적 독립 ········································ 1057
제3항 법원의 조직 ············································ 1061
Ⅰ. 법원의 종류 ················································ 1061
Ⅱ. 대법원 ·························································· 1061
Ⅲ. 하급법원 ······················································· 1064
Ⅳ. 군사법원 ······················································· 1066
제4항 법원의 권한 ············································ 1069
Ⅰ. 위헌법률심판제청권 ····································· 1069
Ⅱ. 명령.규칙심사권 ·········································· 1069
Ⅲ. 대법원규칙제정권 ········································· 1070
제5항 사법의 절차와 운영 ······························· 1073
Ⅰ. 사법절차의 의의 ·········································· 1073
Ⅱ. 재판의 심급제도 ·········································· 1073
Ⅲ. 재판의 공개제도 ·········································· 1074
Ⅳ. 법정질서 유지권 ·········································· 1075
제7장 헌법재판소
제1항 헌법재판제도의 연혁과 의의 ················· 1077
Ⅰ. 각국의 헌법재판제도 ··································· 1077
Ⅱ. 우리나라 헌법재판제도의 연혁 ··················· 1077
Ⅲ. 헌법재판의 이념과 법적 성격 ····················· 1078
제2항 헌법재판소의 구성과 지위 ···················· 1079
Ⅰ. 헌법재판소의 구성 ······································· 1079
제3항 헌법재판의 심판절차와 운영 ················· 1081
Ⅰ. 재판부와 대리인 ········································ 1081
Ⅱ. 심리 ······························································ 1084
제4항 헌법재판소의 위헌법률심사 권한 ·········· 1088
Ⅰ. 위헌법률심제도의 의의 ······························ 1088
Ⅱ. 위헌법률심판의 요건 ··································· 1088
Ⅲ. 법원의 제청절차와 헌법재판소의 심리 ······· 1097
Ⅳ. 위헌법률심판의 결정유형 ···························· 1101
Ⅴ. 위헌결정의 효력 ·········································· 1103
Ⅵ. 헌법불합치결정의 효력 ································ 1109
제5항 헌법소원심판 ·········································· 1112
Ⅰ. 헌법소원심판의 의의 ··································· 1112
Ⅱ. 헌법소원심판의 대상 ··································· 1113
Ⅲ. 헌법소원심판의 청구요건 ···························· 1130
Ⅳ. 헌법소원심판 청구절차 ······························ 1168
Ⅴ. 헌법소원심판의 절차와 결정유형 ················ 1169
Ⅵ. 헌법재판소법 제68조 제2항의 헌법소원 ····· 1171
제6항 기관간 권한쟁의심판 ······························ 1179
Ⅰ. 기관간 권한쟁의심판의 의의 ······················· 1179
Ⅱ. 기관간 권한쟁의심판의 청구 ······················· 1180
Ⅲ. 결정 ······························································ 1191
부록
*판례색인
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