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헌법학(중)(2판) [헌법]
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헌법학(중)(2판) [헌법]

  • 홍성방
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  • 박영사
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  • 2015-07-30 출간
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  • 532페이지
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  • 188 X 255 mm
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  • ISBN 9791130327716
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머 리 말


2010년 초판 발간 이후 아주 오랜만에 개정판을 낸다.
이 개정판에서는 우선, 저자가 헌법Ⅰ(1999. 7.)과 헌법Ⅱ(2000. 3.)를 출판하고 난 후 출판된 10여 종 넘는 헌법교과서들 가운데서 계속해서 출간되고 있는 교과서들의 내용을 검토하여 수록하였다. 다음으로, 2000년대 들어서면서 여러 논문집에서 훌륭한 논문들이 많이 발표되고 있어 그 내용도 가능하면 검토하여 수록하려고 노력하였다. 셋째로, 그리 흔한 경우는 아니지만, 여러 교과서와 논문에서 저자의 생각과는 다르거나 저자의 생각을 오해하는 견해들도 발견되고 있어 가능한 한 그에 대한 저자의 생각을 밝힘과 동시에 저자의 생각에 미숙한 부분이 있었다면 그를 보완 또는 수정하였다. 물론 이는 2000년 이후에 출간된 헌법교과서들과 논문들에 한정된 이야기이다. 2000년 이전에 헌법교과서를 출판한 헌법학계의 선배들로부터는 저자가 헌법학교과서를 출판한 후 어떤 가르침도 받은 바 없다. 이 점에 대해서는 매우 아쉽게 생각하고 있다. 마지막으로, 2010년 이 책의 초판 발간 이후에 내려진 중요한 헌법재판소 결정들과 대법원 판례들도 수록하려고 노력하였다.
형식적으로는 우선, 독자에 따라 본문만 계속해서 읽으려는 독자, 본문과 판례를 함께 읽으려는 독자, 판례만 읽으려는 독자가 있을 수 있어 그들의 편의를 위하여 본문과 구별되게 판례를 음영 처리하였다. 다음으로, 각주를 면밀히 검토하려는 신중한 독자의 경우 예컨대 초판에서는 409쪽에 있는 (각주 920)의 내용을 확인하기 위하여 5쪽까지 되돌아가야 하는 불편함이 있었다. 이러한 불편함을 없애기 위하여 각주를 편별로 일련의 각주 배열에서 쪽마다 각주를 새롭게 배열하는 방법으로 변경하였다.
이러한 여러 가지 이유로 2010년의 초판에 비해 쪽수도 80쪽 이상 늘었다. 이 개정판이 초판에 비해 내용적, 형식적으로 더욱 풍부한 것이 되어 독자들이 우리 헌법의 개별기본권을 이해하는데 도움이 되었으면 한다.


2015. 7.
홍 성 방

목차

第4 編　個別基本權
第1 章　基本權保障의 理念과 包括的 基本權
第1 節　人間의 尊嚴과 價値······················································································ 3
1. 憲法規定·································································································· 3
(1) 人間의 尊嚴을 規定하고 있는 憲法·················································· 3
(2) 人間의 尊嚴을 規定한 憲法規定의 의미 ·········································· 4
(3) 人間의 尊嚴規定에 影響을 준 문서 ·················································· 4
(4) 人間의 尊嚴性規定의 韓國憲法에의 수용 ········································ 4
2. 人間의 尊嚴과 價値의 意義································································ 5
(1) ‘人間으로서의 尊嚴과 價値’의 槪念·················································· 5
(2) 人格主義的 人間觀의 表現································································· 9
(3) 人間은 왜 尊嚴한가? ············································································ 9
3. 人間의 尊嚴과 價値의 法的 性格···················································· 11
(1) 學　　說······························································································· 11
(2) 私　　見······························································································· 12
4. 具體的 權利性 與否············································································ 14
(1) 學說 및 判例······················································································· 14
(2) 私　　見······························································································· 17
5. 人間의 尊嚴과 價値의 主體······························································ 33
(1) 自然人··································································································· 33
(2) 人間의 死體························································································· 34
6. 人間으로서의 尊嚴과 價値의 效力··················································· 35
7. 人間으로서의 尊嚴과 價値의 制限··················································· 35
(1) 學　　說······························································································· 35
(2) 私　　見······························································································· 35
第2 節　幸福追求權······································································································ 37
1. 憲法規定, 由來 및 基本權體系上의 問題點··································· 37
(1) 憲法規定과 그 由來··········································································· 37
－ v －
vi　차　　례
(2) 幸福追求權規定의 수용배경 ······························································ 37
(3) 幸福追求權規定을 수용한 데 대한 학계의 견해 및 사견 ············ 38
2. 幸福追求權의 槪念·············································································· 39
3. 幸福追求權의 主體·············································································· 41
4. 幸福追求權의 法的 性格···································································· 41
(1) 槪　　觀······························································································· 41
(2) 學　　說······························································································· 41
(3) 學說에 대한 檢討··············································································· 45
(4) 私　　見······························································································· 48
5. 幸福追求權의 內容·············································································· 49
(1) 學說과 判例························································································· 49
(2) 새로운 학설 ·························································································· 52
(3) 私　　見······························································································· 55
(4) 具體的 內容과 適用··········································································· 56
6. 幸福追求權의 效力·············································································· 59
7. 幸福追求權의 限界와 制限································································ 59
8. 幸福追求權의 侵害와 救濟································································ 61
(1) 侵　　害······························································································· 61
(2) 救　　濟······························································································· 61
第3 節　平等의 原理와 平等權················································································ 61
1. 沿革 및 憲法規定················································································ 61
(1) 平等思想의 展開와 憲法에의 受容·················································· 61
(2) 憲法規定······························································································· 63
2. 平等規定의 法的 性格········································································ 63
(1) 平等의 原理························································································· 64
(2) 一般的 平等權····················································································· 65
3. ‘法 앞에 平等’의 主體········································································ 66
(1) ‘法 앞에 平等’의 主體······································································· 66
(2) 外國人의 主體性 與否······································································· 66
4. 平等規定의 內容: ‘法 앞에 平等’ ····················································· 69
(1) 法의 意味····························································································· 69
(2) 平等의 意味························································································· 69
5. 平等規定의 適用·················································································· 78
(1) 差別禁止事由······················································································· 78
(2) 差別禁止領域······················································································· 80
차　　례　vii
6. 平等規定의 效力·················································································· 84
7. 우리 憲法上 平等原理의 具現形態·················································· 84
(1) 特權制度의 禁止················································································· 84
(2) 個別的 平等規定················································································· 85
8. 平等規定의 制限·················································································· 86
(1) 憲法規定에 의한 制限······································································· 86
(2) 法律規定에 의한 制限(제37조 제 2 항) ··········································· 87
(3) 緊急命令 등에 의한 制限(제76조) ··················································· 88
第2 章　自由權的 基本權
第1 節　槪　　觀········································································································· 90
1. 自由權을 처음 規定한 憲法文書······················································· 90
2. 自由權의 一次的 機能········································································ 90
3. 自由權의 本質······················································································ 90
4. 自由權의 主體······················································································ 91
5. 自由權의 性格變化·············································································· 91
6. 自由權의 分類方法·············································································· 92
(1) 學　　說······························································································· 92
(2) 私　　見······························································································· 92
第2 節　身體의 自由··································································································· 93
1. 憲法規定 및 意義················································································ 93
(1) 憲法規定······························································································· 93
(2) 意義 및 沿革······················································································· 93
2. 身體의 自由·························································································· 94
(1) 身體의 自由의 槪念··········································································· 94
(2) 身體의 自由의 主體··········································································· 95
(3) 身體의 自由의 內容··········································································· 95
(4) 身體의 自由의 效力··········································································· 97
(5) 身體의 自由의 制限과 限界····························································· 97
3. 身體의 自由의 實效的 保障을 위한 制度들 ··································· 99
(1) 身體의 自由를 실효적으로 保障하기 위한 여러 制度들의
體系化·································································································· 99
(2) 罪刑法定主義····················································································· 101
(3) 適法節次의 原理··············································································· 105
viii　차　　례
(4) 事前令狀主義····················································································· 109
(5) 拘束適否審査制度············································································· 112
(6) 身體의 自由에 대한 그 밖의 保障················································ 114
第3 節　居住? 移轉의 自由····················································································· 118
1. 憲法規定 및 沿革·············································································· 118
(1) 憲法規定····························································································· 118
(2) 국가이념사와 居住?移轉의 自由··················································· 118
(3) 居住?移轉의 自由의 헌법사적 의의 ············································· 118
(4) 居住?移轉의 自由의 현대적 기능 ················································· 119
2. 居住?移轉의 自由의 主體······························································· 119
(1) 居住?移轉의 自由의 主體······························································ 119
(2) 脫北住民의 入國의 問題································································· 119
3. 居住?移轉의 自由의 槪念 및 內容··············································· 121
(1) 槪　　念····························································································· 121
(2) 內　　容····························································································· 121
4. 居住?移轉의 自由의 效力······························································· 122
5. 居住?移轉의 自由의 制限과 限界················································· 123
(1) 居住?移轉의 自由를 制限하는 法律············································ 123
(2) 居住?移轉의 自由關聯 憲法裁判所決定例·································· 124
(3) 制限의 限界······················································································· 124
第4 節　職業選擇의 自由························································································· 125
1. 憲法規定 및 沿革·············································································· 125
(1) 憲法規定····························································································· 125
(2) 沿　　革····························································································· 125
2. 職業選擇의 自由의 意義 및 法的 性格········································ 126
(1) 意　　義····························································································· 126
(2) 法的 性格··························································································· 126
3. 職業選擇의 自由의 主體·································································· 127
(1) 學　　說····························································································· 127
(2) 私　　見····························································································· 128
4. 職業選擇의 自由의 內容·································································· 129
(1) 職業의 槪念······················································································· 129
(2) 職業選擇의 自由의 內容································································· 129
(3) 職業의 自由와 營業의 自由의 相互關係······································ 132
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5. 職業選擇의 自由의 效力·································································· 133
6. 職業選擇의 自由의 制限 및 限界·················································· 133
(1) 制　　限····························································································· 133
(2) 職業의 自由의 制限에 대한 段階理論·········································· 134
(3) ‘國家留保’(Staatsvorbehalt)의 問題―公務員數의 制限과
職業選擇의 自由·············································································· 139
(4) 制限의 限界······················································································· 140
第5 節　住居의 自由································································································· 142
1. 憲法規定 및 沿革·············································································· 142
(1) 憲法規定····························································································· 142
(2) 沿　　革····························································································· 142
2. 住居의 自由의 意義 및 法的 性格················································ 142
(1) 意　　義····························································································· 142
(2) 法的 性格··························································································· 143
3. 住居의 自由의 主體·········································································· 143
4. 住居의 自由의 內容·········································································· 143
(1) 住居의 槪念······················································································· 143
(2) 住居의 自由의 內容········································································· 144
5. 住居의 自由의 效力·········································································· 146
6. 住居의 自由의 制限·········································································· 146
第6 節　私生活의 秘密과 自由·············································································· 147
1. 憲法規定 및 沿革·············································································· 147
(1) 憲法規定····························································································· 147
(2) 沿　　革····························································································· 147
2. 私生活의 秘密과 自由의 主體························································ 148
3. 私生活의 秘密과 自由의 內容························································ 148
(1) 槪念 및 法的 性格··········································································· 148
(2) 具體的 內容······················································································· 150
4. 私生活의 秘密과 自由의 效力························································ 152
5. 私生活의 秘密과 自由의 限界와 制限··········································· 152
(1) 限　　界····························································································· 152
(2) 制　　限····························································································· 154
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第7 節　通信의 自由································································································· 154
1. 憲法規定 및 沿革·············································································· 154
(1) 憲法規定····························································································· 154
(2) 沿　　革····························································································· 154
2. 通信의 自由의 機能 및 法的 性格················································ 155
(1) 機　　能····························································································· 155
(2) 法的 性格··························································································· 155
3. 通信의 自由의 主體·········································································· 155
4. 通信의 自由의 內容·········································································· 156
(1) 槪　　念····························································································· 156
(2) 通信의 秘密의 不可侵····································································· 156
(3) 電氣通信盜聽의 禁止······································································· 156
5. 通信의 自由의 效力·········································································· 157
6. 通信의 自由의 限界 및 制限·························································· 158
(1) 限　　界····························································································· 158
(2) 制　　限····························································································· 158
第8 節　良心의 自由································································································· 160
1. 憲法規定 및 沿革·············································································· 160
2. 良心의 自由의 法的 性格································································ 160
3. 良心의 自由의 主體·········································································· 161
4. 良心의 自由의 內容·········································································· 161
(1) 良心의 槪念······················································································· 161
(2) 良心의 自由의 具體的 內容··························································· 163
5. 良心의 自由의 效力·········································································· 173
6. 良心의 自由의 限界 및 制限·························································· 174
(1) 學　　說····························································································· 174
(2) 私　　見····························································································· 175
第9 節　宗敎의 自由································································································· 177
1. 憲法規定 및 沿革·············································································· 177
2. 宗敎의 自由의 法的 性格································································ 178
3. 宗敎의 自由의 主體·········································································· 178
4. 宗敎의 自由의 內容·········································································· 178
(1) 宗敎의 槪念······················································································· 178
(2) 宗敎의 自由의 內容········································································· 179
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(3) 政敎分離의 原則··············································································· 181
5. 宗敎의 自由의 效力·········································································· 183
6. 宗敎의 自由의 限界 및 制限·························································· 183
第10節　言論? 出版의 自由····················································································· 184
1. 憲法規定 및 沿革·············································································· 184
(1) 憲法規定····························································································· 184
(2) 沿　　革····························································································· 185
2. 言論?出版의 自由의 意義 및 機能··············································· 185
(1) 意　　義····························································································· 185
(2) 機　　能····························································································· 186
3. 言論?出版의 自由의 法的 性格····················································· 187
4. 言論?出版의 自由의 主體······························································· 187
5. 言論?出版의 自由의 內容······························································· 187
(1) 意思表現의 自由··············································································· 188
(2) 알 權利(열독의 자유, 정보의 자유) ··············································· 191
(3) 報道의 自由······················································································· 195
(4) access권(언론기관접근권) ································································· 197
6. 言論?出版의 自由의 效力······························································· 202
7. 言論?出版의 自由의 責任······························································· 202
(1) 憲法 제21조 제 4 항 제 1 문의 法的 性格과 效力······················· 202
(2) 言論?出版의 自由의 責任······························································ 204
8. 言論?出版의 自由의 制限······························································· 207
(1) 法律에 의한 制限············································································· 207
(2) 非常戒嚴에 의한 制限····································································· 207
(3) 制限基準에 관한 理論····································································· 207
第11節　集會? 結社의 自由····················································································· 218
1. 憲法規定 및 沿革·············································································· 218
(1) 憲法規定····························································································· 218
(2) 沿　　革····························································································· 218
(3) 立 法 例····························································································· 219
2. 集會의 自由························································································ 219
(1) 集會의 槪念 및 集會의 自由의 機能············································ 219
(2) 集會의 自由의 法的 性格······························································· 221
(3) 集會의 自由의 主體········································································· 222
xii　차　　례
(4) 集會의 自由의 內容········································································· 222
(5) 集會의 自由의 效力········································································· 224
(6) 集會의 自由의 制限········································································· 224
3. 結社의 自由························································································ 228
(1) 結社의 槪念 및 結社의 自由의 機能············································ 228
(2) 結社의 自由의 法的 性格······························································· 229
(3) 結社의 自由의 主體········································································· 229
(4) 結社의 自由의 內容········································································· 230
(5) 結社의 自由의 效力········································································· 231
(6) 結社의 自由의 限界와 制限··························································· 231
第12節　學問의 自由? 藝術의 自由······································································ 232
1. 憲法規定······························································································ 232
2. 學問의 自由························································································ 232
(1) 沿革 및 趣旨····················································································· 232
(2) 學問의 自由의 法的 性格?主體?다른 基本權과의 關係·········· 233
(3) 學問의 自由의 內容········································································· 234
(4) 大學의 自由(自治) ············································································ 236
(5) 學問의 自由의 效力········································································· 239
(6) 學問의 自由의 制限········································································· 239
3. 藝術의 自由························································································ 241
(1) 沿革 및 意義····················································································· 241
(2) 藝術의 自由의 法的 性格?主體 및 他基本權과의 關係··········· 241
(3) 藝術의 槪念······················································································· 242
(4) 藝術의 自由의 內容········································································· 244
(5) 藝術의 自由의 效力········································································· 250
(6) 藝術의 自由의 制限········································································· 250
4. 知的財産權의 保護············································································ 251
(1) 知的財産權保護에 대한 憲法規定················································· 251
(2) 知的財産權保護義務········································································· 251
第13節　財 産 權······································································································· 251
1. 憲法規定 및 沿革·············································································· 251
(1) 憲法規定····························································································· 251
(2) 沿革 및 立法例················································································· 252
2. 財産權의 法的 性格·········································································· 253
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(1) 法的 性格··························································································· 253
(2) 制度保障의 핵심 ··············································································· 254
(3) 憲法 제23조 제 2 항의 義務의 性格·············································· 254
3. 財産權의 主體와 客體······································································ 254
(1) 主　　體····························································································· 254
(2) 客　　體····························································································· 255
4. 財産權의 內容···················································································· 257
(1) 內　　容····························································································· 257
(2) 私有財産制度의 保障······································································· 257
(3) 私有財産權의 保障··········································································· 257
(4) 遡及立法에 의한 財産權剝奪禁止················································· 258
5. 財産權의 效力···················································································· 259
6. 財産權의 限界···················································································· 259
(1) 法律主義····························································································· 259
(2) 財産權行使의 社會的 義務性(社會?束性) ·································· 261
7. 財産權의 制限···················································································· 266
(1) 法律에 의한 制限············································································· 266
(2) 公共必要에 의한 制限····································································· 267
(3) 緊急命令, 緊急財?經濟命令處分(제76조)에 의한 制限············ 273
8. 財産權制限의 限界············································································ 273
第3 章　社會的 基本權
第1 節　社會的 基本權一般論················································································ 275
1. 憲法規定과 歷史的 展開·································································· 275
(1) 憲法規定····························································································· 275
(2) 歷史的 展開······················································································· 275
2. 社會的 基本權의 現代的 意味························································ 275
(1) 社會的 基本權의 現代的 意味······················································· 275
(2) 自由權과 社會權의 關聯性····························································· 276
3. 社會的 基本權의 理念的 源泉························································ 277
(1) 學　　說····························································································· 277
(2) 學說에 대한 檢討············································································· 277
(3) 私　　見····························································································· 279
4. 社會的 基本權의 槪念定義······························································ 279
(1) ‘社會的’이란 用語의 意味······························································· 279
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(2) 社會的 基本權의 槪念定義····························································· 280
5. 社會的 權利와 社會主義的 權利···················································· 280
(1) 社會的 實現······················································································· 280
(2) 社會的 實現의 두 가지 방향 ·························································· 281
(3) 社會權이 전제하는 인간상 ······························································· 281
(4) 社會主義的 權利가 전제하는 인간상 ············································· 281
(5) 社會主義基本權 이해의 특징 ·························································· 282
(6) 社會的 權利와 社會主義的 權利의 무관성 ·································· 283
6. 社會的 基本權의 目錄······································································ 283
(1) 社會的 基本權의 목록 ····································································· 283
(2) 社會權과 밀접한 관련을 가지는 權利들 ······································· 285
7. 社會權의 法的 性格·········································································· 285
(1) 社會權의 一般的 性格을 논의하는 것의 非適切性····················· 285
(2) 우리 憲法上의 社會的 基本權의 法的 性格································ 286
8. 社會權과 自由權의 相關關係·························································· 293
(1) 對立關係로 보는 見解····································································· 293
(2) 緊張關係로 보는 見解····································································· 293
(3) 私　　見····························································································· 294
9. 우리 憲法의 社會權的 基本權規定과 그 構造····························· 295
(1) 우리 憲法에 規定되어 있는 社會的 基本權································ 295
(2) 우리 憲法上 社會的 基本權規定의 구조 ······································ 295
第2 節　敎育을 받을 權利······················································································ 296
1. 憲法規定 및 沿革·············································································· 296
(1) 憲法規定····························································································· 296
(2) 沿　　革····························································································· 296
2. 敎育을 받을 權利(수업권, 수학권)의 意義······································· 297
3. 敎育을 받을 權利의 法的 性格······················································· 299
(1) 學說과 判例······················································································· 299
(2) 私　　見····························································································· 300
4. 敎育을 받을 權利의 主體 및 效力················································· 300
(1) 敎育을 받을 權利의 主體································································ 300
(2) 敎育을 받을 權利의 效力································································ 301
5. 敎育을 받을 權利의 內容································································· 301
(1) 敎育을 받을 權利의 內容································································ 301
(2) 敎育과 관련된 參與權의 問題························································ 303
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6. 義務敎育의 制度的 保障·································································· 308
(1) 義務敎育의 制度的 保障································································· 308
(2) 敎育義務의 主體··············································································· 310
(3) 無償義務敎育에서의 ‘無償’의 範圍··············································· 310
7. 敎育에 관한 原則規範······································································ 311
第3 節　勤勞의 權利································································································· 313
1. 憲法規定 및 沿革·············································································· 313
(1) 憲法規定····························································································· 313
(2) 沿　　革····························································································· 313
2. 勤勞의 權利의 槪念 및 機能·························································· 314
(1) 勤勞의 權利의 槪念········································································· 314
(2) 勤勞의 權利의 機能········································································· 315
3. 勤勞의 權利의 法的 性格································································ 315
(1) 學　　說····························································································· 315
(2) 私　　見····························································································· 316
4. 勤勞의 權利의 主體·········································································· 316
(1) 學說과 判例······················································································· 316
(2) 私　　見····························································································· 317
5. 勤勞의 權利의 內容·········································································· 318
(1) 本質的 內容······················································································· 318
(2) 勤勞의 權利를 補完하기 위한 制度·············································· 319
6. 勤勞의 權利의 效力·········································································· 323
(1) 勤勞의 權利의 效力········································································· 323
(2) 憲法 제32조 제 4 항?제 5 항의 使用者에 대한 效力의 問題···· 324
7. 勤勞의 權利의 制限·········································································· 324
第4 節　勤勞者의 勞動三權···················································································· 324
1. 憲法規定 및 沿革·············································································· 324
(1) 憲法規定····························································································· 324
(2) 沿　　革····························································································· 325
2. 勞動 3權의 法的 性格······································································ 325
(1) 學　　說····························································································· 325
(2) 私　　見····························································································· 327
3. 勞動 3權의 主體················································································ 327
4. 勞動 3權의 內容················································································ 328
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(1) 團 結 權····························································································· 329
(2) 團體交涉權························································································· 331
(3) 團體行動權························································································· 333
5. 勞動 3權의 效力················································································ 336
6. 勞動 3權의 制限················································································ 337
(1) 憲法에 의한 制限············································································· 337
(2) 法律에 의한 制限············································································· 340
(3) 非常戒嚴에 의한 制限····································································· 341
第5 節　人間다운 生活을 할 權利······································································· 342
1. 憲法規定 및 沿革·············································································· 342
(1) 憲法規定····························································································· 342
(2) 沿　　革····························································································· 342
2. 人間다운 生活을 할 權利의 法的 性格········································· 342
(1) 學說?判例························································································· 342
(2) 私　　見····························································································· 344
3. 人間다운 生活을 할 權利의 主體··················································· 344
4. 人間다운 生活을 할 權利의 內容··················································· 345
(1) 人間다운 生活을 할 權利의 槪念과 機能···································· 345
(2) 社會保障을 받을 權利····································································· 346
(3) 生活保護를 받을 權利····································································· 348
(4) 災害豫防과 危險으로부터의 保護에 관한 權利··························· 350
5. 人間다운 生活을 할 權利의 效力··················································· 350
6. 人間다운 生活을 할 權利의 制限과 限界····································· 350
7. 人間다운 生活을 할 權利의 侵害와 救濟····································· 351
第6 節　環 境 權········································································································ 351
1. 憲法規定 및 沿革·············································································· 351
(1) 憲法規定····························································································· 351
(2) 沿　　革····························································································· 351
2. 環境權의 法的 性格·········································································· 352
(1) 自由權?社會權 竝存說··································································· 352
(2) 總合的 基本權說··············································································· 353
(3) 綜合的 基本權說··············································································· 354
(4) 私　　見····························································································· 356
3. 環境權의 主體···················································································· 358
차　　례　xvii
(1) 環境權의 主體··················································································· 358
(2) 環境權과 미래세대 保護義務·························································· 358
4. 環境權의 內容···················································································· 359
(1) 環境의 槪念······················································································· 359
(2) 環境權의 內容··················································································· 363
5. 環境權의 效力···················································································· 364
6. 環境權의 制限과 限界······································································ 364
7. 環境權의 侵害와 救濟······································································ 365
(1) 環境權의 侵害와 救濟一般····························································· 365
(2) 環境權侵害의 權利救濟의 어려움과 사전적 보호의 중요성 ······ 366
(3) 環境權의 財産權 등에 대한 우위론 ··············································· 366
8. 現行環境權에 대한 立法論的 考察················································ 367
(1) 현행 環境權規定의 問題點····························································· 367
(2) 環境基本權 외에 環境國家目標規定을 신설해야 할 必要性····· 368
第7 節　婚姻? 家族? 母性保護? 保健에 관한 權利·········································· 369
1. 憲法規定 및 沿革·············································································· 369
(1) 憲法規定····························································································· 369
(2) 沿　　革····························································································· 369
2. 婚姻과 家族制度의 保障·································································· 370
(1) 憲法 第36條 第1 項의 法的 性格················································· 370
(2) 憲法 第36條 第1 項의 主體··························································· 376
(3) 憲法 第36條 第1 項의 內容··························································· 376
(4) 婚姻할 自由의 效力········································································· 377
(5) 婚姻할 自由의 制限········································································· 378
3. 母性保護······························································································ 379
(1) 母性保護····························································································· 379
(2) 母性保護를 위하여 제정된 法律들 ················································· 379
4. 保 健 權······························································································ 379
(1) 保健權의 槪念··················································································· 379
(2) 保健權의 法的 性格········································································· 380
(3) 保健權의 主體··················································································· 380
(4) 保健權의 內容··················································································· 381
(5) 保健權의 效力··················································································· 383
(6) 保健權의 制限··················································································· 383
xviii　차　　례
第4 章　參政權的 基本權
第1 節　參政權的 基本權一般論··········································································· 384
1. 參政權의 槪念···················································································· 384
2. 參政權의 機能···················································································· 385
3. 參政權의 法的 性格·········································································· 386
(1) 學　　說····························································································· 386
(2) 私　　見····························································································· 387
4. 參政權의 主體···················································································· 388
(1) 國　　民····························································································· 388
(2) 法人과 外國人의 主體性與否························································· 389
5. 參政權의 內容과 分類······································································ 391
(1) 參政權의 內容··················································································· 391
(2) 參政權의 分類··················································································· 392
6. 參政權의 效力···················································································· 392
7. 參政權의 制限···················································································· 392
(1) 憲法에 의한 制限············································································· 392
(2) 法律에 의한 制限············································································· 393
(3) 遡及立法에 의한 參政權制限禁止················································· 394
第2 節　選 擧 權········································································································ 394
1. 憲法規定과 歷史 및 規定方式························································ 394
(1) 憲法規定····························································································· 394
(2) 選擧權의 歷史··················································································· 395
(3) 選擧權의 規定方式··········································································· 395
2. 選擧權의 意義···················································································· 395
3. 選擧權의 法的 性格·········································································· 396
(1) 學　　說····························································································· 396
(2) 判　　例····························································································· 396
(3) 私　　見····························································································· 397
4. 選擧權의 內容···················································································· 397
5. 選擧權의 制限···················································································· 398
第3 節　公務擔任權···································································································· 400
1. 憲法規定······························································································ 400
2. 公務擔任權의 槪念과 法的 性格···················································· 400
차　　례　xix
(1) 公務擔任權의 槪念··········································································· 400
(2) 公務擔任權의 法的 性格································································· 400
3. 公務擔任權의 內容············································································ 400
(1) 被選擧權····························································································· 401
(2) 公職就任權························································································· 402
4. 公務擔任權의 制限············································································ 402
(1) 被選擧權의 制限··············································································· 402
(2) 公職就任權의 制限··········································································· 402
第4 節　國民投票權(國民票決權) ············································································· 404
1. 憲法規定······························································································ 404
2. 國民投票權의 槪念과 類型······························································ 404
(1) 國民投票權의 槪念과 類型····························································· 404
(2) 國民投票의 歷史··············································································· 404
(3) 國民投票制度에 대한 批判····························································· 404
3. 國民投票權의 內容············································································ 405
(1) 現行憲法上 國民投票權의 內容····················································· 405
(2) 住民投票制························································································· 405
4. 國民投票權의 制限과 限界······························································ 406
(1) 國民投票權의 制限과 限界····························································· 406
(2) 國民投票權의 缺格事由··································································· 406
第5 章　基本權保障을 위한 基本權(請求權的 基本權, 節次基本權)
第1 節　基本權保障을 위한 基本權(請求權的 基本權, 節次基本權)
一般論············································································································· 407
1. 基本權保障을 위한 基本權의 槪念················································· 407
(1) 基本權保障을 위한 基本權의 槪念················································ 407
(2) 基本權保障을 위한 基本權―용어의 문제 ····································· 407
2. 基本權保障을 위한 基本權의 特性과 法的 性格························· 408
(1) 基本權保障을 위한 基本權의 特性················································ 408
(2) 基本權保障을 위한 基本權의 法的 性格······································ 409
3. 基本權保障을 위한 基本權의 主體················································· 409
4. 基本權保障을 위한 基本權의 效力················································· 409
5. 基本權保障을 위한 基本權의 制限················································· 410
6. 우리 憲法에 규정된 基本權保障을 위한 基本權·························· 410
xx　차　　례
第2 節　請 願 權········································································································ 410
1. 憲法規定 및 沿革·············································································· 410
(1) 憲法規定····························································································· 410
(2) 沿　　革····························································································· 411
2. 請願權의 槪念과 機能······································································ 411
(1) 請願權의 槪念··················································································· 411
(2) 請願權의 機能··················································································· 412
3. 請願權의 法的 性格·········································································· 412
(1) 學　　說····························································································· 412
(2) 私　　見····························································································· 413
4. 請願權의 主體와 客體······································································ 413
(1) 請願權의 主體··················································································· 413
(2) 請願權의 客體··················································································· 413
5. 請願權의 內容···················································································· 414
(1) 請願事項과 請願禁止事項······························································· 414
(2) 請願權의 行使要件··········································································· 414
(3) 請願權의 行使方法 및 節次··························································· 414
(4) 請願의 效果······················································································· 415
6. 請願權의 效力···················································································· 416
7. 請願權의 制限···················································································· 417
8. 國會請願(國會法 第123條?第126條) ··················································· 417
第3 節　裁判請求權···································································································· 417
1. 憲法規定 및 沿革·············································································· 417
(1) 憲法規定····························································································· 417
(2) 沿　　革····························································································· 418
2. 裁判請求權의 意義············································································ 418
(1) 裁判請求權의 槪念··········································································· 418
(2) 裁判請求權의 機能··········································································· 418
3. 裁判請求權의 法的 性格·································································· 419
(1) 學　　說····························································································· 419
(2) 學說에 대한 檢討 및 私見······························································ 419
4. 裁判請求權의 主體············································································ 420
5. 裁判請求權의 內容············································································ 420
(1) 憲法과 法律이 정한 法官에 의한 裁判을 받을 權利················· 421
차　　례　xxi
(2) 法律에 의한 裁判을 받을 權利······················································ 430
(3) 迅速한 公開裁判을 받을 權利························································ 431
(4) 公正한 裁判을 받을 權利································································ 433
(5) 刑事被害者의 裁判上(裁判節次, 公判節次)陳述權····················· 435
6. 裁判請求權의 效力············································································ 436
7. 裁判請求權의 制限 및 限界···························································· 437
(1) 一般的 制限······················································································· 437
(2) 特別한 制限······················································································· 439
第4 節　刑事補償請求權··························································································· 440
1. 憲法規定 및 沿革·············································································· 440
(1) 憲法規定····························································································· 440
(2) 沿　　革····························································································· 440
2. 刑事補償請求權의 槪念···································································· 441
3. 刑事補償의 本質 및 刑事補償請求權의 法的 性格···················· 441
(1) 刑事報償의 本質··············································································· 441
(2) 刑事補償請求權의 法的 性格························································· 442
4. 刑事補償請求權의 主體···································································· 442
5. 刑事補償請求權의 內容···································································· 442
(1) 刑事補償請求權의 成立要件··························································· 442
(2) 刑事補償의 內容··············································································· 443
(3) 刑事補償請求의 節次와 方法························································· 445
第5 節　國家賠償請求權··························································································· 445
1. 憲法規定 및 沿革·············································································· 445
(1) 憲法規定····························································································· 445
(2) 沿　　革····························································································· 446
2. 國家賠償請求權의 意義···································································· 446
(1) 國家賠償請求權의 槪念··································································· 446
(2) 國家賠償請求權의 意義··································································· 446
3. 國家賠償請求權의 法的 性格·························································· 446
4. 國家賠償請求權의 主體와 客體······················································ 448
(1) 主　　體····························································································· 448
(2) 客　　體····························································································· 448
5. 國家賠償請求權의 內容···································································· 448
(1) 國家賠償請求權의 成立要件··························································· 448
xxii　차　　례
(2) 國家賠償責任의 本質······································································· 453
(3) 賠償責任者························································································· 454
(4) 賠償請求의 節次?賠償의 範圍?消滅時效··································· 457
6. 國家賠償請求權의 制限···································································· 459
(1) 憲法 제29조 제 2 항에 의한 制限·················································· 459
(2) 法律에 의한 制限············································································· 462
(3) 緊急命令에 의한 制限····································································· 463
第6 節　犯罪被害者救助請求權·············································································· 463
1. 憲法規定 및 沿革·············································································· 463
(1) 憲法規定····························································································· 463
(2) 沿　　革····························································································· 463
2. 犯罪被害者救助請求權의 法的 性格·············································· 463
(1) 學　　說····························································································· 463
(2) 私　　見····························································································· 464
3. 犯罪被害者救助請求權의 主體························································ 465
4. 犯罪被害者救助請求權의 內容························································ 465
(1) 犯罪被害者救助請求權의 槪念······················································· 465
(2) 被害者救助金····················································································· 465
(3) 犯罪被害者救助請求權의 成立要件··············································· 466
(4) 犯罪被害者救助金 請求節次··························································· 467
5. 犯罪被害者救助請求權의 效力························································ 467
6. 犯罪被害者救助請求權의 制限························································ 467
第6 章　國民의 基本義務
第1 節　國民의 基本義務一般論··········································································· 469
1. 國民의 基本義務의 槪念·································································· 469
2. 國民의 基本義務의 沿革·································································· 470
(1) 啓蒙主義 사상가들과 인간의 自然的 義務··································· 470
(2) 國民의 義務의 憲法規範化····························································· 471
(3) 우리 憲法에 規定된 國民의 基本義務·········································· 473
3. 國民의 基本義務의 法的 性格························································ 473
4. 國民의 基本義務의 類型 및 그 特徵············································· 475
(1) 國民의 基本義務의 類型································································· 475
(2) 國民의 基本義務의 特徵································································· 479
차　　례　xxiii
5. 基本義務와 관련된 그 밖의 문제들 ················································ 479
(1) 基本義務의 受範者··········································································· 479
(2) 基本義務의 效力··············································································· 480
(3) 基本權과 基本義務의 衝突····························································· 480
(4) 基本義務의 競合··············································································· 482
第2 節　個別的 基本義務························································································· 483
1. 納稅의 義務························································································ 483
(1) 憲法規定 및 沿革············································································· 483
(2) 納稅의 義務의 法的 性格······························································· 483
(3) 納稅의 義務의 主體········································································· 483
(4) 納稅의 義務의 內容········································································· 484
2. 國防의 義務························································································ 485
(1) 憲法規定····························································································· 485
(2) 國防의 義務의 法的 性格······························································· 486
(3) 國防의 義務의 內容········································································· 486
(4) 國防의 義務의 主體········································································· 488
3. 敎育을 받게 할 義務········································································· 489
(1) 憲法規定····························································································· 489
(2) 敎育을 받게 할 義務의 意義·························································· 490
(3) 敎育을 받게 할 義務의 法的 性格················································ 490
(4) 敎育을 받게 할 義務의 主體·························································· 490
4. 勤勞의 義務························································································ 491
(1) 憲法規定····························································································· 491
(2) 勤勞의 義務의 意義········································································· 491
(3) 勤勞의 義務의 法的 性格······························································· 491
(4) 勤勞의 義務의 主體········································································· 492
(5) 勤勞의 義務의 內容········································································· 492
5. 環境保全義務······················································································ 492
(1) 憲法規定····························································································· 492
(2) 環境保全義務의 法的 性格····························································· 492
(3) 環境保全義務의 主體······································································· 492
(4) 環境保全義務의 內容······································································· 493
6. 財産權行使의 公共福利適合義務···················································· 493
(1) 憲法規定····························································································· 493
(2) 財産權行使의 公共福利適合義務의 法的 性格··························· 493
xxiv　차　　례
(3) 財産權行使의 公共福利適合義務의 內容····································· 494
대한민국헌법 ·················································································································· 497
판례색인 ·························································································································· 509
사항색인 ·························································································································· 529

저자소개

저자 홍성방은
1952년 제주 출생
고려대학교 법과대학 및 동 대학원 석사 박사과정 수료
독일 K?n대학교에서 법학박사학위(Dr. iur.) 취득
한림대학교 교수(1988~1997)
독일 쾰른 대학교 법과대학 ‘국가철학 및 법정책연구소’ 객원교수(1994~1995)
제 7 회 한국헌법학회 학술상 수상(2005)
사법시험 및 각종 국가시험위원, 한국공법학회 부회장, 한국헌법학회 부회장,
　한독법률학회 부회장, 안암법학회 부회장, 한국가톨릭사회과학연구회 회장,
　한국환경법학회 부회장 역임
현재 서강대학교 법학전문대학원 교수

주요 저서 및 논문
Soziale Rechte auf der Verfassungsebene und auf der gesetzlichen Ebene, Diss. K?n(1986)
해방과 정치계몽주의, 도서출판 새남, 1988(M. Kriele, Befreiung und politische Aufkl?ung, 1980)
민주주의 세계혁명, 도서출판 새남, 1990(M. Kriele, Die demokratische Weltrevolution, 1987)
법과 실천이성, 한림대학교출판부, 1992(M. Kriele, Recht und praktische Vernunft, 1979)
법발견론, 한림대학교출판부, 1994(M. Kriele, Theorie der Rechtsgewinnung, 2. Aufl. 1976)
마르크스주의와 수정사회주의, 도서출판 새남, 1996(B. Gustaffson, Marxismus und Revisionismus, 1972)
국가론, 민음사, 1997(H. Heller, Staatslehre, 6. Aufl. 1983)
헌법Ⅰ, 현암사, 1999
헌법정해, 신영사, 1999
헌법요론, 신영사, 1999(2005: 제 4 판)
환경보호의 법적문제, 서강대학교 출판부, 1999
헌법Ⅱ, 현암사, 2000
객관식헌법, 신영사, 2000(2005: 제 4 판)
헌법재판소결정례요지(편), 법문사, 2002
헌법학, 현암사, 2002(2009: 개정 6판)
헌법과 미래(공저), 인간사랑, 2007
법학입문, 신론사, 2007
헌법국가의 도전, 두성사, 2007(M. Kriele, Die Herausforderungen des Verfassungsstaates, 1970)
7급객관식헌법, 두성사, 2008
헌법학(상), 박영사, 2010(2013: 제 2 판)
헌법학(하), 박영사, 2010(2014: 제 3 판)
프롤레타리아 계급독재, 신론사, 2011(Karl Kautsky, Die Diktatur des Proletariats, 1918)
국가의 법적 기본질서로서의 헌법, 유로, 2011(Werner K?i, Die Verfassung als rechtliche Grundordnung
des Staates, 2. Aufl. 1971)
국가형태, 유로, 2011(Max Imboden, Die Staatsformen, 1959)
소외론, 유로, 2011(Friedrich M?ler, Entfredung, 2. Aufl. 1985)
법발견의 이론, 유로, 2013(M. Kriele, Theorie der Rechtsgewinnung, 2. Aufl. 1976)
법과 실천이성, 유로, 2013(M. Kriele, Recht und praktische Vernunft, 1979)
정의의 판단기준, 유로, 2014(M. Kriele, Kriterien der Gerechtigkeit, 1963)
법률과 판결, 유로, 2014(Carl Schmitt, Gesetz und Urteil, 1912, 2. Aufl. 1969)
법관법, 유로, 2014(Friedrich M?ler, Richterrecht, 1986)
헌법소송법, 박영사, 2015
‘사회국가 해석모델에 관한 비판적 검토’, ‘자연의 권리주체성’, ‘독일의 헌법과 행정법에 있어서의 환경보호’ 등 논문 다수

도서소개

『헌법학(중)』은 저자가 헌법Ⅰ(1999. 7.)과 헌법Ⅱ(2000. 3.)를 출판하고 난 후 출판된 10여 종 넘는 헌법교과서들 가운데서 계속해서 출간되고 있는 교과서들의 내용을 검토하여 수록하였다. 다음으로, 2000년대 들어서면서 여러 논문집에서 훌륭한 논문들이 많이 발표되고 있어 그 내용도 가능하면 검토하여 수록하고자 하였다.
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