헌법이라는 과목은 법학 과목에서 비교적 쉬운 과목으로 생각될 수 있습니다. 헌법의 우리의 가치관에서 머무르는 것이 아니라 생활과 삶, 구석구석까지 연결되어 있기 때문 입니다. 그러나 시험을 목전에 두면, 쉽게 여겨지던 헌법이 어렵게 다가옵니다. 어떠한 기본권을 제한하였는지, 그리고 어떠한 기본권을 침해하였는지, 위헌으로 결정된 이유는 과소보호금지원칙을 위반하였기 때문인지 아니면 과잉금지원칙을 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 포인트를 시각적으로 체크 하는 데에 중점을 두었습니다. 비록 첫 회독에는 30~40시간 정도의 강의시간을 투자하여야 하지만, 마지막 1주일에는 하루에, 시험당일에는 1시간 이내에 정리할 수있는 최고의 무기가 될 것입니다.
? ? 이 책의 특징은 다음과 같습니다.
1. 헌법판례를 완벽하게 정리하기 위하여 헷갈리기 쉬운 제도와 판례를 표로 만들었고, 중요한 부분에는 밑줄을 그었습니다.
2. 변호사시험, 경정승진시험, 국가직 7급, 지방직 7급, 국가직 5급, 법원행시, 법원직 9급 등 모든 국가시험의 기출지문 중 다시 출제 가능한 부분을 반영하였으며, 헌법 재판소 판례는 2022년 12월 22일에 선고된 결정까지 반영하였습니다.
3. 부속법령을 효율적으로 정리하기 위하여 기출문제 및 최근 개정된 부분을 중심으로 소개하였습니다.
4. 헌법 조문의 정확한 암기를 돕기 위하여 교재 마지막 부분에 괄호 넣기 형식으로 헌법 조문을 수록하였습니다.
5. 시험의 점수를 판가름 짓는 침해되는 기본권, 위헌의 이유, 헌법소원의 대상성 등을 일목요연하게 정리하였습니다.
6. 기출지문 중 반복출제 가능성이 높은 지문을 오엑스 문제로 추가하였습니다.
아무쪼록 이 책으로 헌법공부를 마무리하시는 모든 분들이 합격의 기쁨을 누릴 수 있기를 간절히 기원합니다.
2023년 2월 12일유시완 씀
제1편 헌법 총론
Chapter 1. 헌법의 특성 ······································································································································ 2
2. 합헌적 법률해석 ································································································································ 2
3. 관습헌법 ··········································································································································· 5
4. 헌법개정의 한계 ································································································································ 9
5. 저항권 ··············································································································································· 11
6. 역대 헌법의 제정·개정 과정과 주요 특징 ··················································································· 12
7. 역대 헌법의 기본권 비교 ················································································································ 16
8. 국 적 ················································································································································ 19
9. 국적법 기타 중요 조문 ···················································································································· 21
10. 대한민국의 영역 ······························································································································· 21
11. 헌법전문 ··········································································································································· 22
12. 헌법의 기본원리 ······························································································································ 25
13. 국민주권의 원리 ······························································································································ 25
14. 헌법상 소수자 보호제도 ·················································································································· 25
15. 법률유보의 원칙 ······························································································································ 26
16. 체계정당성 ······································································································································· 27
17. 신뢰보호원칙 ···································································································································· 28
18. 신뢰보호원칙 위반을 인정한 사례 ································································································· 29
19. 신뢰보호원칙 위반을 부정한 사례 ································································································· 32
20. 사회국가의 원리 ······························································································································ 34
21. 헌법상 경제질서 위반을 인정한 사례 ···························································································· 35
22. 헌법상 경제질서에 위반되지 않는다고 본 사례 ··········································································· 35
23. 문화국가의 원리 ······························································································································ 37
24. 국제평화주의 ··································································································································· 39
25. 평화통일의 원칙 ······························································································································ 42
26. 제도적 보장 ····································································································································· 43
27. 정당의 개념과 정당의 자유 ············································································································ 43
28. 위헌정당해산 및 등록취소 ·············································································································· 47
29. 정당법 등 중요 조문 ······················································································································ 50
30. 정치자금 ··········································································································································· 51
31. 정치자금법 중요 조문 ····················································································································· 54
32. 선거제도 ·········································································································································· 54
33. 공직선거법 중요 조문 ····················································································································· 68
34. 지방자치제도 ···································································································································· 71
35. 지방자치법 등 중요 조문 ············································································································ 79
제2편 기본권
Chapter 1. 기본권 주체 ···································································································································· 84
2. 기본권의 효력 ······························································································································ 87
3. 기본권 보호의무 ······························································································································ 87
4. 국가인권위원회법 중요 조문 ·········································································································· 92
5. 인간의 존엄과 가치 ························································································································· 93
6. 행복추구권 ······································································································································· 95
7. 행복추구권을 침해하였다고 인정한 판례 ······················································································ 96
8. 자기결정권 ····································································································································· 102
9. 자기책임의 원리 ···························································································································· 104
10. 평등권 ············································································································································ 105
11. 적극적 평등실현조치의 성격 ········································································································· 106
12. 평등권침해를 인정한 판례 ············································································································ 107
13. 평등권침해를 부정한 판례 ············································································································· 115
14. 생명권 ············································································································································· 116
15. 신체의 자유 ···································································································································· 117
16. 죄형법정주의 ·································································································································· 118
17. 명확성원칙 위배 여부 판단기준 ···································································································· 121
18. 명확성원칙과 포괄위임금지원칙의 관계 ····················································································· 123
19. 명확성원칙 위배 여부 ···················································································································· 124
20. 이중처벌금지원칙(일사부재리원칙) ······························································································ 126
21. 연좌제 금지 ···································································································································· 130
22. 적법절차의 원칙 ···························································································································· 130
23. 영장주의 ········································································································································· 132
24. 체포·구속적부심사 청구의 주체 ································································································· 136
25. 무죄추정의 원칙 ···························································································································· 137
26. 진술거부권 ····································································································································· 138
27. 변호인의 조력을 받을 권리 ·········································································································· 138
28. 변호인이 피구속자를 조력할 권리 ······························································································· 144
29. 사생활의 비밀과 자유의 보호영역 밖 ·························································································· 146
30. 사생활의 비밀과 자유를 침해하였다고 본 사례 ········································································· 146
31. 대법원 판례 ···································································································································· 147
32. 개인정보자기결정권 ······················································································································· 148
33. 개인정보 보호법 중요 조문 ·········································································································· 149
34. 개인정보보자기결정권을 침해하였다고 인정한 판례 ·································································· 150
35. 주거의 자유 ····································································································································· 156
36. 거주·이전의 자유 ·························································································································· 158
37. 통신의 자유 ····································································································································· 159
38. 통신비밀보호법 중요 조문 ············································································································· 160
39. 양심의 자유 ····································································································································· 160
40. 종교의 자유 ····································································································································· 164
41. 학문의 자유 ······································································································································ 167
42. 대학의 자치(대학의 자율성) ··········································································································· 169
43. 언론·출판의 자유 ··························································································································· 172
44. 알권리 ·············································································································································· 173
45. 공공기관의 정보공개에 관한 법률 중요 조문 ··············································································· 176
46. Access권 ········································································································································· 177
47. 검열 금지 ········································································································································· 178
48. 표현의 자유를 침해하였다고 인정한 판례 ···················································································· 180
49. 언론·출판의 자유의 한계 ·············································································································· 183
50. 집회의 자유 ····································································································································· 184
51. 집회의 자유를 침해하였다고 인정한 판례 ····················································································· 186
52. 집회 및 시위에 관한 법률 중요 조문 ··························································································· 190
53. 결사의 자유 ······································································································································ 191
54. 결사의 자유 침해를 인정한 판례 ··································································································· 191
55. 재산권 ·············································································································································· 192
56. 재산권 제한 ····································································································································· 194
57. 재산권 침해를 인정한 판례 ············································································································ 196
58. 특별부담금 ······································································································································ 207
59. 재산권의 공용수용 ·························································································································· 209
60. 직업의 자유 ····································································································································· 210
61. 직업의 자유를 침해하였다고 인정한 판례 ····················································································· 212
62. 소비자보호운동 ································································································································ 216
63. 국민투표권 ······································································································································· 217
64. 국민투표법 중요 조문 ····················································································································· 218
65. 공무담임권 ······································································································································· 219
66. 공무담임권 침해를 인정한 판례 ····································································································· 221
67. 직업공무원제도 ······························································································································· 223
68. 청원권 ·············································································································································· 224
69. 청원법, 국회법, 지방자치법 중요 조문 ························································································· 225
0. 재판청구권 ······································································································································ 226
71. 재판청구권을 침해하였다고 인정한 판례 ······················································································· 227
72. 국민의 형사재판 참여에 관한 법률 중요 조문 ············································································· 232
73. 형사보상청구권 ······························································································································· 235
74. 형사보상 및 명예회복에 관한 법률 중요 조문 ············································································· 234
75. 국가배상청구권 ······························································································································· 235
76. 이중배상 금지 ································································································································· 239
77. 국가배상법 중요 조문 ····················································································································· 240
78. 범죄피해자 보호법 중요 조문 ········································································································ 241
79. 인간다운 생활을 할 권리 ··············································································································· 242
80. 교육을 받을 권리 ··························································································································· 243
81. 의무교육 ·········································································································································· 244
82. 학부모의 자녀교육권 ······················································································································ 245
83. 교원지위 법정주의 ·························································································································· 246
84. 근로의 권리 ····································································································································· 247
85. 근로3권 ·········································································································································· 248
86. 노동조합 및 노동관계조정법 중요 조문 ······················································································· 250
87. 환경권 ·············································································································································· 251
88. 혼인과 가족생활 ······························································································································ 251
89. 국방의 의무 ····································································································································· 254
제3편 통치구조
Chapter 1. 대의제와 직접민주제 ····················································································································· 256
2. 공직선거법 중요 조문 ··················································································································· 258
3. 권력분립의 원리 ···························································································································· 258
4. 국회의 조직 ··································································································································· 259
5. 국회의 의사절차 ·························································································································· 262
6. 국회의원의 심의·표결권 ············································································································· 265
7. 조세의 기본원칙 ···························································································································· 267
8. 조세법률주의에 위배된 사례 ········································································································ 268
9. 인사청문 대상자 ···························································································································· 269
10. 탄핵소추대상자 ······························································································································ 270
11. 탄핵소추 사유 및 절차 ·················································································································· 270
차 례
12. 국정감사와 국정조사 ····················································································································· 273
13. 국무총리·국무위원 해임건의권 ··································································································· 274
14. 불체포특권 ····································································································································· 276
15. 면책특권 ········································································································································· 276
16. 국회법 중요 조문 ·························································································································· 278
17. 헌법재판소법 중요 조문 ················································································································ 283
18. 국정감사 및 조사에 관한 법률 중용 조문 ················································································· 283
19. 국가재정법 중요 조문 ··················································································································· 284
20. 인사청문회법 중요 조문 ············································································································· 284
21. 대통령 권한대행 ···························································································································· 285
22. 대통령의 특권 ······························································································································· 286
23. 대통령직 인수에 관한 법률 중요 조문 ························································································ 287
24. 국가긴급권 ····································································································································· 287
25. 비상계엄 시 특별한 조치나 기본권 제한 ···················································································· 289
26. 계엄법 중요 조문 ························································································································ 289
27. 법규명령 ········································································································································ 290
28. 행정입법 의무 ································································································································ 291
29. 국회법 중요 조문 ·························································································································· 292
30. 포괄위임금지원칙 ·························································································································· 293
31. 사 면 ·············································································································································· 297
32. 사면법 중요 조문 ·························································································································· 298
33. 국무총리 ········································································································································ 299
34. 국무총리의 권한대행 ···················································································································· 300
35. 정부조직법 중요 조문 ··················································································································· 301
36. 국무회의 규정 중요 조문 ············································································································· 302
37. 감사원 ············································································································································ 302
38. 감사원법 중요 조문 ······················································································································ 303
39. 선거관리위원회법 중요 조문 ······································································································· 303
40. 재판의 독립 ·································································································································· 304
41. 법관의 양형결정권, 책임과 형벌의 비례원칙 ·············································································· 304
42. 사법권의 한계 ······························································································································· 308
43. 명령·규칙 심사권 ························································································································ 309
44. 법원조직법 중요 조문 ··················································································································· 310
45. 가처분 ············································································································································ 312
46. 헌법재판소법 제68조 제1항 헌법소원심판에서 가처분신청을 인용한 사례 ···························· 313
47. 재심 허용 여부 ······························································································································ 314
48. 재심사유 ·········································································································································· 315
49. 위헌법률심판의 대상 ······················································································································· 316
50. 재판의 전제성 ································································································································· 318
51. 위헌법률심판의 심사기준 및 심판대상의 확대 ·············································································· 321
52. 위헌결정의 기속력 ·························································································································· 322
53. 한정위헌결정의 기속력 ··················································································································· 323
54. 형벌조항에 대한 위헌결정의 소급효 ····························································································· 323
55. 비형벌조항에 대한 예외적 소급효 ································································································· 324
56. 위헌심사형 헌법소원 ······················································································································ 325
57. 권리구제형 헌법소원 청구인 능력(기본권의 주체) ······································································· 327
58. 공권력의 행사 또는 공권력의 불행사 ··························································································· 327
59. 입법작용 ·········································································································································· 328
60. 입법부작위 ······································································································································ 329
61. 행정작용 ·········································································································································· 330
62. 검사의 처분에 대한 헌법소원 ········································································································ 334
63. 사법작용 ·········································································································································· 335
64. 기본권침해 가능성 ·························································································································· 339
65. 기본권침해의 자기관련성 ··············································································································· 341
66. 기본권침해의 직접성 ······················································································································ 342
67. 기본권침해의 현재성 ······················································································································ 344
68. 보충성 ············································································································································· 344
69. 권리보호이익 ··································································································································· 347
70. 헌법소원 청구기간 ·························································································································· 348
71. 변호사강제주의 ································································································································ 350
72. 심판절차종료 ··································································································································· 350
73. 권한쟁의심판 ··································································································································· 351
74. 권한쟁의심판 당사자능력 ··············································································································· 352
75. 권한쟁의심판 당사자적격 ··············································································································· 354
76. 피청구인의 처분 또는 부작위 ········································································································ 355
77. 권한의 침해 또는 현저한 침해위험의 가능성 ··············································································· 356
78. 권리보호이익 ··································································································································· 360
79. 권한쟁의 청구기간 ·························································································································· 360
80. 권한쟁의심판의 결정 ······················································································································ 360
81. 헌법재판소법 중요 조문 ················································································································· 368
대한민국 헌법 ·············································································································· 373
