헌법이라는 과목은 법학 과목에서 비교적 쉬운 과목으로 생각될 수 있습니다. 헌법의 우리의 가치관에서 머무르는 것이 아니라 생활과 삶, 구석구석까지 연결되어 있기 때문입니다.
여유 있게 헌법을 현실생활과 정치에 빗대어 생각하면 용이하게 이해가 되고 손쉽게 정리될수 있습니다. 시간이 많았을 때의 얘기입니다.
시험을 목전에 두면, 쉽게 여겨지던 헌법이 어렵게 다가옵니다. 어떠한 기본권을 제한하였는 지, 그리고 어떠한 기본권을 침해하였는지, 위헌으로 결정된 이유는 영장주의를 위반하였기 때문인지 아니면 과잉금지원칙에 위반하였기 때문인지, 헌법소원의 대상이 되는 공권력의 행사에 해당하는지 등등 어느 것 하나 확실하지 않습니다. 시험이 3개월밖에 남지 않은 시점, 더 나아가 시험 1개월 전, 시험 1주일 전에는 이를 차분히 이해할 여유가 없습니다. 그러다보면 헌법이 합격의 발목을 잡아버리곤 합니다.
이 책은 이러한 수험생의 상황을 고려하여, 시험에 나오는 핵심 포인트들을 시각적으로 체크 하는 데에 중점을 두었습니다. 비록 첫 회독에는 20시간정도의 강의시간을 투자하여야 하지만, 반드시 출제되고 고득점을 좌우하는 헌법의 핵심 포인트들을 마지막 1주일에는 하루에, 시험당일에는 1시간 이내에 정리할 수 있는 최고의 무기가 될 것입니다.
이 책의 특징은 다음과 같습니다.
1. 헌법판례를 완벽하게 정리하기 위하여 헷갈리기 쉬운 제도와 판례를 표로 만들었고, 중요한 부분에는 밑줄을 그었습니다. 헌법재판소 판례는 2020년 9월 24일에 선고된 결정까지 반영하였습니다.
2. 부속법령을 효율적으로 정리하기 위하여 기출문제 및 최근 개정된 부분을 중심으로 소개하 였습니다.
3. 헌법 조문의 정확한 암기를 돕기 위하여 교재 마지막 부분에 괄호 넣기 형식으로 헌법 조문을 수록하였습니다.
4. 시험의 점수를 판가름 짓는 침해되는 기본권, 위헌의 이유, 헌법소원의 대상성 등을 일목요 연하게 정리하였습니다.
아무쪼록 본서로 헌법공부를 마무리하시는 모든 분들이 합격의 기쁨을 누릴 수 있기를 간절히 기원합니다.
2020년 10월 13일
유시완 씀
제 1편 헌법 총론
헌법의 특성 ··································································································································· 2
합헌적 법률해석 ··························································································································· 2
관습헌법 ······································································································································ 5
헌법개정의 한계 ··························································································································· 8
저항권 ·········································································································································· 10
역대 헌법의 제정·개정 과정과 주요 특징 ············································································· 11
역대 헌법의 기본권 비교 ·········································································································· 14
국 적 ············································································································································ 16
국적법 기타 중요 조문 ·············································································································· 18
대한민국의 영역 ························································································································· 18
헌법전문 ······································································································································ 19
헌법의 기본원리 ························································································································· 21
국민주권의 원리 ························································································································· 21
헌법상 소수자 보호제도 ············································································································ 21
법률유보의 원칙 ························································································································· 22
체계정당성 ·································································································································· 23
신뢰보호원칙 ······························································································································· 24
신뢰보호원칙 위반을 인정한 사례 ··························································································· 25
신뢰보호원칙 위반을 부정한 사례 ··························································································· 27
사회국가의 원리 ························································································································· 29
헌법상 경제질서 위반을 인정한 사례 ····················································································· 30
헌법상 경제질서에 위반되지 않는다고 본 사례 ····································································· 31
문화국가의 원리 ························································································································· 32
국제평화주의 ······························································································································ 33
평화통일의 원칙 ························································································································· 35
제도적 보장 ································································································································ 36
정당의 자유 ································································································································ 36
위헌정당해산 및 등록취소 ········································································································ 39
정당법 등 중요 조문 ················································································································· 42
정치자금 ······································································································································ 43
정치자금법 중요 조문 ··············································································································· 45
선거제도 ······································································································································ 46
공직선거법 중요 조문 ················································································································ 57
지방자치제도 ······························································································································ 60
지방자치법 등 중요 조문 ·········································································································· 67
제 2 편 기본권
기본권 주체 ································································································································ 70
기본권의 효력 ····························································································································· 72
기본권 보호의무 ························································································································· 72
국가인권위원회법 중요 조문 ····································································································· 76
인간의 존엄과 가치 ···················································································································· 77
행복추구권 ·································································································································· 79
행복추구권을 침해하였다고 인정한 판례 ················································································ 80
자기결정권 ·································································································································· 83
자기책임의 원리 ························································································································· 85
평등권 ········································································································································· 86
적극적 평등실현조치의 성격 ····································································································· 87
평등권침해를 인정한 판례 ········································································································ 88
생명권 ········································································································································· 94
신체의 자유 ································································································································ 95
죄형법정주의 ······························································································································ 96
명확성원칙 위배 여부 판단기준 ······························································································· 99
명확성원칙과 포괄위임금지원칙의 관계 ·············································································· 100
명확성원칙 위배 여부 ·············································································································· 101
이중처벌금지원칙(일사부재리원칙) ························································································· 103
연좌제 금지 ······························································································································ 106
적법절차의 원칙 ······················································································································· 106
영장주의 ···································································································································· 108
체포·구속적부심사 청구의 주체 ···························································································· 111
무죄추정의 원칙 ························································································································ 112
진술거부권 ································································································································· 112
변호인의 조력을 받을 권리 ····································································································· 113
변호인이 피구속자를 조력할 권리 ·························································································· 117
사생활의 비밀과 자유의 보호영역 밖 ···················································································· 119
사생활의 비밀과 자유를 침해하였다고 본 사례 ··································································· 120
대법원 판례 ······························································································································· 121
개인정보자기결정권 ·················································································································· 122
개인정보 보호법 중요 조문 ···································································································· 122
개인정보보자기결정권을 침해하였다고 인정한 판례 ···························································· 123
주거의 자유 ······························································································································ 128
거주·이전의 자유 ··················································································································· 129
통신의 자유 ······························································································································ 130
통신비밀보호법 중요 조문 ······································································································· 131
양심의 자유 ······························································································································· 131
종교의 자유 ······························································································································ 135
학문의 자유 ······························································································································ 136
대학의 자치(대학의 자율성) ···································································································· 137
c o n t e n t s
언론·출판의 자유 ··················································································································· 140
알권리 ········································································································································ 141
공공기관의 정보공개에 관한 법률 중요 조문 ······································································· 144
Access권 ·································································································································· 145
검열 금지 ·································································································································· 146
표현의 자유를 침해하였다고 인정한 판례 ············································································ 147
언론·출판의 자유의 한계 ······································································································ 149
집회의 자유 ······························································································································ 150
집회의 자유를 침해하였다고 인정한 판례 ············································································· 151
집회 및 시위에 관한 법률 중요 조문 ··················································································· 155
결사의 자유 ······························································································································ 156
결사의 자유 침해를 인정한 판례 ··························································································· 156
재산권 ········································································································································ 157
재산권 제한 ······························································································································ 158
재산권 침해를 인정한 판례 ···································································································· 159
특별부담금 ································································································································ 169
재산권의 공용수용 ··················································································································· 170
직업의 자유 ······························································································································· 171
직업의 자유를 침해하였다고 인정한 판례 ············································································ 172
소비자보호운동 ························································································································· 176
국민투표권 ································································································································ 176
국민투표법 중요 조문 ·············································································································· 177
공무담임권 ································································································································ 178
공무담임권 침해를 인정한 판례 ····························································································· 178
직업공무원제도 ························································································································· 179
청원권 ······································································································································· 180
청원법, 국회법, 지방자치법 중요 조문 ················································································· 180
재판청구권 ································································································································· 181
재판청구권을 침해하였다고 인정한 판례 ·············································································· 182
국민의 형사재판 참여에 관한 법률 중요 조문 ···································································· 185
형사보상청구권 ························································································································· 186
형사보상 및 명예회복에 관한 법률 중요 조문 ···································································· 186
국가배상청구권 ························································································································· 187
이중배상 금지 ·························································································································· 189
국가배상법 중요 조문 ············································································································· 190
범죄피해자 보호법 중요 조문 ································································································· 191
인간다운 생활을 할 권리 ········································································································ 191
교육을 받을 권리 ····················································································································· 192
의무교육 ···································································································································· 193
학부모의 자녀교육권 ················································································································ 194
교원지위 법정주의 ··················································································································· 194
근로의 권리 ······························································································································ 195
근로3권 ··································································································································· 196
노동조합 및 노동관계조정법 중요 조문 ················································································ 198
환경권 ········································································································································ 198
혼인과 가족생활 ······················································································································· 198
국방의 의무 ······························································································································ 200
제 3 편 통치구조
대의제와 직접민주제 ··············································································································· 202
공직선거법 중요 조문 ············································································································· 203
권력분립의 원리 ······················································································································ 203
일사부재의의 원칙 ··················································································································· 206
국회의원의 심의·표결권 ······································································································· 208
조세의 기본원칙 ······················································································································ 209
조세법률주의에 위배된 사례 ·································································································· 210
인사청문 대상자 ························································································································ 211
탄핵소추대상자 ························································································································· 212
탄핵소추 사유 및 절차 ············································································································ 212
국정감사와 국정조사 ················································································································ 214
국무총리·국무위원 해임건의권 ····························································································· 215
불체포특권 ································································································································ 216
면책특권 ···································································································································· 216
국회법 중요 조문 ····················································································································· 217
헌법재판소법 중요 조문 ·········································································································· 222
국가재정법 중요 조문 ············································································································· 222
인사청문회법 중요 조문 ········································································································ 222
대통령 권한대행 ······················································································································· 222
대통령의 특권 ·························································································································· 223
대통령직 인수에 관한 법률 중요 조문 ················································································· 224
국가긴급권 ································································································································ 224
비상계엄 시 특별한 조치나 기본권 제한 ············································································· 225
계엄법 중요 조문 ··················································································································· 225
법규명령 ···································································································································· 225
행정입법 의무 ·························································································································· 227
국회법 중요 조문 ···················································································································· 228
포괄위임금지원칙 ····················································································································· 228
사 면 ········································································································································· 230
사면법 중요 조문 ····················································································································· 231
국무총리 ···································································································································· 232
국무총리의 권한대행 ··············································································································· 232
정부조직법 중요 조문 ············································································································· 233
국무회의 규정 중요 조문 ······································································································· 233
감사원 ······································································································································· 233
감사원법 중요 조문 ················································································································· 234
선거관리위원회법 중요 조문 ·································································································· 234
재판의 독립 ······························································································································ 234
법관의 양형결정권, 책임과 형벌의 비례원칙 ······································································· 235
사법권의 한계 ·························································································································· 237
c o n t e n t s
명령·규칙 심사권 ·················································································································· 238
법원조직법 중요 조문 ············································································································· 238
가처분 ······································································································································· 240
헌법재판소법 제68조 제1항 헌법소원심판에서 가처분신청을 인용한 사례 ··················· 240
재심 허용 여부 ························································································································· 241
재심사유 ···································································································································· 242
위헌법률심판의 대상 ··············································································································· 243
재판의 전제성 ·························································································································· 244
위헌법률심판의 심사기준 ········································································································ 246
위헌결정의 기속력 ··················································································································· 247
한정위헌결정의 기속력 ············································································································ 247
형벌조항에 대한 위헌결정의 소급효 ····················································································· 247
비형벌조항에 대한 예외적 소급효 ························································································· 248
위헌심사형 헌법소원 ··············································································································· 249
권리구제형 헌법소원 청구인 능력(기본권의 주체) ······························································ 250
공권력의 행사 또는 공권력의 불행사 ··················································································· 250
입법작용 ···································································································································· 251
입법부작위 ································································································································ 251
행정작용 ···································································································································· 252
검사의 처분에 대한 헌법소원 ································································································ 254
사법작용 ··································································································································· 256
기본권침해 가능성 ··················································································································· 257
기본권침해의 자기관련성 ········································································································ 259
기본권침해의 직접성 ················································································································ 261
기본권침해의 현재성 ··············································································································· 262
보충성 ······································································································································· 262
권리보호이익 ···························································································································· 264
청구기간 ··································································································································· 265
변호사강제주의 ························································································································· 267
심판절차종료 ···························································································································· 267
권한쟁의심판 ···························································································································· 268
권한쟁의심판 당사자능력 ········································································································ 268
권한쟁의심판 당사자적격 ········································································································ 270
피청구인의 처분 또는 부작위 ································································································ 270
권한의 침해 또는 현저한 침해위험의 가능성 ······································································· 271
권리보호이익 ···························································································································· 275
청구기간 ···································································································································· 275
권한쟁의심판의 결정 ··············································································································· 275
헌법재판소법 중요 조문 ········································································································· 282
대한민국 헌법 ································································································ 287
