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『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.

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 －
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(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
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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
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(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
x　차　　례
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
차　　례　xi
(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
차　　례　xiii
(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 항제 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
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(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

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