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 정리될 수 있습니다. 그러나 이는 시간이 많았을 때의 얘기입니다.
시험을 목전에 두면, 쉽게 여겨지던 헌법이 어렵게 다가옵니다. 어떠한 기본권을 제한 하였는지, 그리고 어떠한 기본권을 침해하였는지, 위헌으로 결정된 이유는 과소보호금 지원칙을 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 30시간정도의 강의시간을 투자 하여야 하지만, 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.
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 2021년 12월 23일에 선고된 결정까지 반영하였습니다.
3. 부속법령을 효율적으로 정리하기 위하여 기출문제 및 최근 개정된 부분을 중심으로 소개하 였습니다.
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 일목요 연하게 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.
2022년 1월 12일
유시완 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 ·················································································································· 26
15. 법률유보의 원칙 ······························································································································ 26
16. 체계정당성 ······································································································································· 28
17. 신뢰보호원칙 ···································································································································· 28
18. 신뢰보호원칙 위반을 인정한 사례 ································································································· 29
19. 신뢰보호원칙 위반을 부정한 사례 ································································································· 32
20. 사회국가의 원리 ······························································································································ 35
21. 헌법상 경제질서 위반을 인정한 사례 ···························································································· 36
22. 헌법상 경제질서에 위반되지 않는다고 본 사례 ············································································ 37
23. 문화국가의 원리 ······························································································································ 38
24. 국제평화주의 ··································································································································· 40
25. 평화통일의 원칙 ······························································································································ 43
26. 제도적 보장 ····································································································································· 44
27. 정당의 개념과 정당의 자유 ············································································································ 44
28. 위헌정당해산 및 등록취소 ············································································································· 48
29. 정당법 등 중요 조문 ······················································································································· 51
30. 정치자금 ·········································································································································· 53
31. 정치자금법 중요 조문 ····················································································································· 56
32. 선거제도 ·········································································································································· 56
33. 공직선거법 중요 조문 ····················································································································· 69
34. 지방자치제도 ··································································································································· 72
35. 지방자치법 등 중요 조문 ··········································································································· 80
제2편 기본권
Chapter 1. 기본권 주체 ···················································································································· 86
2. 기본권의 효력 ······························································································································ 89
3. 기본권 보호의무 ······························································································································ 89
4. 국가인권위원회법 중요 조문 ·········································································································· 94
5. 인간의 존엄과 가치 ························································································································· 95
6. 행복추구권 ······································································································································· 97
7. 행복추구권을 침해하였다고 인정한 판례 ······················································································ 98
8. 자기결정권 ····································································································································· 103
9. 자기책임의 원리 ···························································································································· 105
10. 평등권 ············································································································································ 106
11. 적극적 평등실현조치의 성격 ········································································································· 107
12. 평등권침해를 인정한 판례 ············································································································ 108
13. 평등권침해를 부정한 판례 ············································································································· 116
14. 생명권 ············································································································································· 117
15. 신체의 자유 ···································································································································· 118
16. 죄형법정주의 ·································································································································· 119
17. 명확성원칙 위배 여부 판단기준 ···································································································· 122
18. 명확성원칙과 포괄위임금지원칙의 관계 ····················································································· 124
19. 명확성원칙 위배 여부 ···················································································································· 125
20. 이중처벌금지원칙(일사부재리원칙) ······························································································ 127
21. 연좌제 금지 ···································································································································· 131
22. 적법절차의 원칙 ····························································································································· 131
23. 영장주의 ········································································································································· 133
24. 체포·구속적부심사 청구의 주체 ································································································· 137
25. 무죄추정의 원칙 ···························································································································· 137
26. 진술거부권 ····································································································································· 140
27. 변호인의 조력을 받을 권리 ·········································································································· 140
28. 변호인이 피구속자를 조력할 권리 ······························································································· 146
29. 사생활의 비밀과 자유의 보호영역 밖 ·························································································· 148
30. 사생활의 비밀과 자유를 침해하였다고 본 사례 ········································································· 148
31. 대법원 판례 ···································································································································· 149
32. 개인정보자기결정권 ······················································································································· 150
33. 개인정보 보호법 중요 조문 ··········································································································· 151
34. 개인정보보자기결정권을 침해하였다고 인정한 판례 ······························································ 152
35. 주거의 자유 ··································································································································· 158
36. 거주·이전의 자유 ························································································································ 160
37. 통신의 자유 ······································································································································ 161
38. 통신비밀보호법 중요 조문 ·············································································································· 162
39. 양심의 자유 ····································································································································· 163
40. 종교의 자유 ····································································································································· 167
41. 학문의 자유 ····································································································································· 169
42. 대학의 자치(대학의 자율성) ············································································································ 171
43. 언론·출판의 자유 ·························································································································· 175
44. 알권리 ·············································································································································· 176
45. 공공기관의 정보공개에 관한 법률 중요 조문 ··············································································· 174
46. Access권 ········································································································································ 180
47. 검열 금지 ········································································································································· 181
48. 표현의 자유를 침해하였다고 인정한 판례 ···················································································· 183
49. 언론·출판의 자유의 한계 ············································································································· 186
50. 집회의 자유 ····································································································································· 187
51. 집회의 자유를 침해하였다고 인정한 판례 ··················································································· 189
52. 집회 및 시위에 관한 법률 중요 조문 ···························································································· 194
53. 결사의 자유 ····································································································································· 195
54. 결사의 자유 침해를 인정한 판례 ··································································································· 195
55. 재산권 ·············································································································································· 196
56. 재산권 제한 ····································································································································· 198
57. 재산권 침해를 인정한 판례 ··········································································································· 200
58. 특별부담금 ······································································································································· 210
59. 재산권의 공용수용 ·························································································································· 212
60. 직업의 자유 ····································································································································· 213
61. 직업의 자유를 침해하였다고 인정한 판례 ····················································································· 215
62. 소비자보호운동 ································································································································ 219
63. 국민투표권 ······································································································································ 220
64. 국민투표법 중요 조문 ····················································································································· 221
65. 공무담임권 ······································································································································· 222
66. 공무담임권 침해를 인정한 판례 ···································································································· 223
67. 직업공무원제도 ······························································································································· 225
68. 청원권 ·············································································································································· 226
69. 청원법, 국회법, 지방자치법 중요 조문 ························································································· 226
70. 재판청구권 ······································································································································· 227
71. 재판청구권을 침해하였다고 인정한 판례 ······················································································ 229
72. 국민의 형사재판 참여에 관한 법률 중요 조문 ············································································· 233
73. 형사보상청구권 ······························································································································· 235
74. 형사보상 및 명예회복에 관한 법률 중요 조문 ············································································· 230
75. 국가배상청구권 ······························································································································· 236
76. 이중배상 금지 ································································································································· 240
77. 국가배상법 중요 조문 ····················································································································· 241
78. 범죄피해자 보호법 중요 조문 ········································································································ 242
79. 인간다운 생활을 할 권리 ··············································································································· 243
80. 교육을 받을 권리 ··························································································································· 244
81. 의무교육 ·········································································································································· 245
82. 학부모의 자녀교육권 ······················································································································ 246
83. 교원지위 법정주의 ·························································································································· 247
84. 근로의 권리 ····································································································································· 249
85. 근로3권 ········································································································································· 250
86. 노동조합 및 노동관계조정법 중요 조문 ······················································································· 253
87. 환경권 ·············································································································································· 253
88. 혼인과 가족생활 ····························································································································· 254
89. 국방의 의무 ····································································································································· 256
제3편 통치구조
Chapter 1. 대의제와 직접민주제 ····································································································· 258
2. 공직선거법 중요 조문 ··················································································································· 260
3. 권력분립의 원리 ··························································································································· 260
4. 국회의 조직 ···································································································································· 261
5. 국회의 의사절차 ·························································································································· 264
6. 국회의원의 심의·표결권 ·············································································································· 267
7. 조세의 기본원칙 ···························································································································· 269
8. 조세법률주의에 위배된 사례 ········································································································ 270
9. 인사청문 대상자 ····························································································································· 271
10. 탄핵소추대상자 ······························································································································ 272
11. 탄핵소추 사유 및 절차 ·················································································································· 272
12. 국정감사와 국정조사 ····················································································································· 275
13. 국무총리·국무위원 해임건의권 ··································································································· 276
14. 불체포특권 ····································································································································· 278
15. 면책특권 ········································································································································· 278
16. 국회법 중요 조문 ·························································································································· 280
17. 헌법재판소법 중요 조문 ················································································································ 285
18. 국정감사 및 조사에 관한 법률 중용 조문 ················································································· 285
19. 국가재정법 중요 조문 ··················································································································· 286
20. 인사청문회법 중요 조문 ············································································································· 286
21. 대통령 권한대행 ···························································································································· 287
22. 대통령의 특권 ································································································································ 287
23. 대통령직 인수에 관한 법률 중요 조문 ························································································ 289
24. 국가긴급권 ····································································································································· 289
25. 비상계엄 시 특별한 조치나 기본권 제한 ···················································································· 290
26. 계엄법 중요 조문 ························································································································· 291
27. 법규명령 ········································································································································· 291
28. 행정입법 의무 ······························································································································· 293
29. 국회법 중요 조문 ·························································································································· 294
30. 포괄위임금지원칙 ·························································································································· 294
31. 사 면 ·············································································································································· 298
32. 사면법 중요 조문 ·························································································································· 299
33. 국무총리 ········································································································································ 300
34. 국무총리의 권한대행 ····················································································································· 301
35. 정부조직법 중요 조문 ·················································································································· 302
36. 국무회의 규정 중요 조문 ············································································································· 303
37. 감사원 ············································································································································ 303
38. 감사원법 중요 조문 ······················································································································ 304
39. 선거관리위원회법 중요 조문 ······································································································· 304
40. 재판의 독립 ·································································································································· 305
41. 법관의 양형결정권, 책임과 형벌의 비례원칙 ·············································································· 305
42. 사법권의 한계 ······························································································································· 309
43. 명령·규칙 심사권 ························································································································ 310
44. 법원조직법 중요 조문 ···················································································································· 311
45. 가처분 ············································································································································ 313
46. 헌법재판소법 제68조 제1항 헌법소원심판에서 가처분신청을 인용한 사례 ····················· 313
47. 재심 허용 여부 ······························································································································ 315
48. 재심사유 ········································································································································· 316
49. 위헌법률심판의 대상 ····················································································································· 317
50. 재판의 전제성 ······························································································································· 319
51. 위헌법률심판의 심사기준 및 심판대상의 확대 ··········································································· 322
52. 위헌결정의 기속력 ························································································································ 323
53. 한정위헌결정의 기속력 ················································································································· 324
54. 형벌조항에 대한 위헌결정의 소급효 ··························································································· 324
55. 비형벌조항에 대한 예외적 소급효 ······························································································· 325
56. 위헌심사형 헌법소원 ···················································································································· 326
57. 권리구제형 헌법소원 청구인 능력(기본권의 주체) ····································································· 328
58. 공권력의 행사 또는 공권력의 불행사 ··························································································· 328
59. 입법작용 ·········································································································································· 329
60. 입법부작위 ······································································································································ 330
61. 행정작용 ··········································································································································· 331
62. 검사의 처분에 대한 헌법소원 ········································································································ 334
63. 사법작용 ·········································································································································· 336
64. 기본권침해 가능성 ·························································································································· 338
65. 기본권침해의 자기관련성 ··············································································································· 340
66. 기본권침해의 직접성 ······················································································································· 341
67. 기본권침해의 현재성 ······················································································································ 343
68. 보충성 ············································································································································· 343
69. 권리보호이익 ··································································································································· 345
70. 헌법소원 청구기간 ·························································································································· 347
71. 변호사강제주의 ································································································································ 348
72. 심판절차종료 ··································································································································· 349
73. 권한쟁의심판 ··································································································································· 350
74. 권한쟁의심판 당사자능력 ··············································································································· 350
75. 권한쟁의심판 당사자적격 ··············································································································· 352
76. 피청구인의 처분 또는 부작위 ········································································································ 357
77. 권한의 침해 또는 현저한 침해위험의 가능성 ··············································································· 354
78. 권리보호이익 ··································································································································· 357
79. 권한쟁의 청구기간 ·························································································································· 357
80. 권한쟁의심판의 결정 ······················································································································ 358
81. 헌법재판소법 중요 조문 ················································································································· 366
대한민국 헌법 ·············································································································· 373
