추가 적립 안내

이 책은 국가론을 연구하는 학자는 물론 일반인도 세계 각국의 국가조직 내지 정치체계를 용이하게 파악할 수 있도록 했다.

오늘날 국가조직법은 기본권과 함께 헌법의 구성부분으로 인정되고 있다. 하지만 국가조직법의 역사는 헌법의 역사보다 길다. 국가조직법은 국가와 사회의 구분을 몰랐던 고대와 중세시대에 사실상 존재하는 권력분배를 위한 계약의 형태로 존재했다. 국가조직법은 17세기 절대군주시대에 국가와 사회가 구분되면서 비록 명목상이지만 헌법적 기능을 하게 된다. 18세기 시민혁명으로 신분제사회가 붕괴되면서 기본권보장목적의 국가조직법으로 재탄생하여 명실상부한 헌법적 지위를 갖게 되었다.
국가조직법의 헌법적 지위를 고려하여 대부분의 국가는 국가조직법을 성문헌법에 규정하고 있다. 하지만 의회주권의 전통에 입각하여 영국, 이스라엘, 뉴질랜드 등은 헌법관습법 내지 정치관계법의 형식으로 국가조직법을 규정하고 있다. 국가조직법을 성문헌법에 규정하고 있는 대부분의 국가도 헌법위임에 의하여 국회법, 정당법, 선거법 등으로 국가조직법을 구체화하고 있다. 따라서 국가조직법은 성문헌법국가나 불문헌법국가나 단행법이 아니라 헌법과 정치관계법으로 분산된 중층의 법규범을 총칭한 것이다. 이 책이 국가조직법에 관한 이론서이지만 ‘국가조직법론’이라 하지 않고 헌법과 정치관계법을 포괄한 점에서‘국가조직론’이라 하고 있는 이유다. 국가조직법은 존재형식의 다양성 이외에 내용상 정치성, 역사성, 동화적 통합의 가치성 등 사실적 요소를 내재하고 있다. 따라서 국가조직법해석에 집중하는 순수 법학적 관점을 지양하고 정치학, 역사학, 철학 등 학제간 연구와 비교법적 연구를 하였다. 이 책은 국가론을 연구하는 학자는 물론 일반인도 세계 각국의 국가조직 내지 정치체계를 용이하게 파악할 수 있도록 했다. 이러한 목적과 달리 이해하기 어려운 부분이 있다면 과문한 필자의 탓이다.
국가법연구를 위해 독일유학을 마치고 귀국하여 교편을 잡은 지도 어언 사반세기에 이른다. 더 늦기 전에 그간 연구한 자료들을 정리하기로 계획을 세워 2년 전 기본권론을 출간하고 이제 국가조직론을 완성하게 되었다.

제1장 국가의 역사적 발전과 개념 3
제1절 국가의 역사적 발전 ························································································ 3
Ⅰ. 국가공동체의 기원 ·······························································································3
1. 분업국가론 4
2. 실력국가론(수력관개이론, 원거리교역이론) 4
3. 정복국가론 5
4. 계 약 설 5
5. 소 결 5
Ⅱ.고대국가 ················································································································6
1. 그리스 민주주의 사례로서 도시국가 6
2. 로마 도시국가 6
3. 고조선과 삼국시대(고구려, 백제, 신라) 7
Ⅲ. 중세시대 국가의 성격 ························································································· 8
1. 중세유럽 8 2. 고려와 조선시대 9
Ⅳ. 근대 국가로 발전 ································································································· 9
Ⅴ. 국민국가로 발전 ································································································· 10
제2절 국가의 개념과 본질적 요소 ································································11
Ⅰ. 국가의 개념 ···································································································11
Ⅱ. 국 민 ··············································································································· 12
1. 사회학적ㆍ자연적 국민개념 12 2. 법적 국민개념 12
3. 능동적 시민으로서 국민 13 4. 주민으로서 국민 14
Ⅲ. 영 토 ··············································································································· 14
Ⅳ. 국가권력과 주권 ································································································· 15
1. 국가권력의 특성 15 2. 주 권 15
3. 정 당 성 16
제3절 국가와 사회 ···························································································· 17
Ⅰ. 국가와 사회의 구별 ··························································································· 17
Ⅱ. 자유주의국가 ·································································································· 17
Ⅲ. 전체국가 ········································································································· 18
Ⅳ. 현대 민주국가에서 국가와 사회 ······································································ 18

제2장 학문의 대상으로서 국가 20

제1절 국가론 발전개관 ···················································································· 20
Ⅰ. 역사적 발전 ···································································································20
Ⅱ. 국가론 연구방법 ································································································· 20
1. 연구방향 20
2. 학문적 연구와 연구방향의 관련성 21
제2절 국가론 연구목적의 다양한 학문들 ····················································· 22
Ⅰ. 정치학과 국가철학 ··························································································· 22
Ⅱ. 국 가 법 ········································································································ 23
Ⅲ. 헌 법 ············································································································· 24
Ⅳ. 헌 법 사 ··································································································· 24
Ⅴ. 비교헌법 ········································································································ 25

제3장 국가형태와 군주제, 과두제, 민주제 국가 27

제1절 국가형태의 종류 ···················································································· 27
Ⅰ. 개 념 ··············································································································· 27
Ⅱ. 고전적 국가형태론 ····························································································· 27
1. 국가권력의 담당자에 따른 구분 27
2. 국가원수에 따른 구분 29
제2절 단독국가와 과두국가 ············································································ 30
Ⅰ. 군주국가 ··································································································30
1. 의의와 유형 30 2. 절대군주제 31
3. 입헌군주제 내지 입헌주의 32 4. 의회군주제 32
5. 현대의 군주제국가 33
Ⅱ. 독재국가 ···································································································33
1. 합헌적 독재 33 2. 혁명적 내지 전제적 독재 34
Ⅲ. 과두제 국가 ······································································································· 35
1. 역사적 국가형태로서 과두제와 귀족제 35
2. 현대 민주국가에서 과두정치의 양상-과두제 철칙- 36
제3절 민주국가 · ································································································· 37
Ⅰ. 의 의 ··············································································································· 37
Ⅱ. 기 원 ··············································································································· 38
1. 고 대 38 2. 중 세 39
3. 종교개혁 40 4. 계몽시대 41
Ⅲ. 민주주의의 원칙과 전제 ··················································································· 42
1. 민주주의의 근본이념으로서 국민주권의 현실적 의미 42
2. 정의전제로서 고유의 가치를 갖는 민주주의 42
3. 민주주의의 전제로서 자유평등시민사회 43
4. 가치상대주의에 의한 관용과 절제 43
5. 다수결원칙과 그 한계 44
6. 교육과 국민의 책임 44
7. 공개와 정보의 자유 45
8. 의사표현의 자유와 복수정당제 45
9. 선 거 권 46
10. 주기적인 선거 46
11. 국가기관의 책임 47
Ⅳ. 민주주의의 전제로서 방어권 ············································································ 48
Ⅴ. 직접민주주의, 반 직접민주주의, (간접)대의민주주의 ······························· 49
1. 직접민주주의 49
2. 플레비시트(Plebiscite) 민주주의 49
3. 대의민주주의 49
4. 국민투표(Referendum)민주주의 내지 반(半) 직접민주주의 50
Ⅵ. 뉴미디어민주주의 내지 전자민주주의(e-Democracy) ································· 54
1. 개 념 54 2. 미디어의 정치적 의사형성기능 55
3. 인터넷과 민주주의 56 4. 소 결 58

제4장 헌 법 59

제1절 헌법의 역사 ···························································································· 59
Ⅰ. 계약으로서 헌법 ································································································· 59
Ⅱ. 흠정헌법-초기입헌주의헌법 ············································································ 60
Ⅲ. 근대입헌주의헌법 ······························································································· 60
Ⅳ. 현대복지국가헌법 ······························································································· 61
제2절 헌법의 개념과 해석 ·············································································· 61
Ⅰ. 헌법의 개념과 분류 ··························································································· 61
1. 다양한 헌법개념 61 2. 형식적ㆍ실질적 의미의 헌법 62
Ⅱ. 헌법의 해석 ································································································63
1. 헌법의 본질을 강조한 해석방법 63
2. 해석의 주체에 따른 헌법해석의 방법 64
3. 일종의 법률로서 헌법해석방법 64
4. 헌법합치적 법률해석 65
제3절 헌법의 기능 ···························································································· 66
1. 헌법의 의미추구에 관한 문제제기 66
2. 헌법의 기능 66
제4절 헌법의 제정과 개정 ·············································································· 69
Ⅰ. 헌법제정권력과 헌법제정의 한계 ···································································· 69
1. 헌법제정권력의 개념과 연원 69
2. 시원적인 헌법제정 70
3. 전래된 헌법제정으로서 헌법개정 70
4. 연성헌법규정과 경성헌법규정의 개정 70
5. 헌법제정기관 71
6. 헌법제정의 한계 72
Ⅱ. 헌법개정의 한계 ································································································· 72
1. 헌법개정권력의 본질 72 2. 실정법적 한계 73
3. 헌법내재적 한계 73
Ⅲ. 한국헌법의 개정절차 ························································································· 75
1. 개정절차(현행헌법 128조 이하) 75
2. 대통령의 국민투표회부(헌법 제72조)에 의한 헌법개정가능여부 75
3. 헌법개정의 실정법적 한계유무 76
제5절 한국헌법의 제ㆍ개정의 역사 ······························································· 76
Ⅰ. 고조선, 삼국, 고려, 조선시대의 국가법 ························································· 76
Ⅱ. 일제강점과 미군정의 무정부시대 ·································································· 77
Ⅲ. 1948년 제헌헌법 ······························································································· 79
1. 제1차 개헌(발췌개헌, 1952) 79
2. 제2차 개헌(四捨五入개헌, 1954) 80
Ⅳ. 1960년 제2공화국 헌법 ····················································································· 80
1. 제3차 개헌(의원내각제개헌, 1960. 6.) 81
2. 제4차 개헌(소급입법개헌, 1960. 11.) 81
Ⅴ. 1962년 제3공화국 헌법 ····················································································· 81
1. 제5차 개헌(대통령제개헌, 1962. 12.) 82
2. 제6차 개정헌법(3선 개헌, 1969) 82
Ⅵ. 1972년 제4공화국 헌법 ····················································································· 82
Ⅶ. 1980년 제5공화국 헌법 ····················································································· 83
Ⅷ. 1987년 제6공화국 헌법 ····················································································· 84
제6절 헌법 개정 없는 헌법형성 ····································································· 85
Ⅰ. 관습헌법과 관행 ······························································································ 85
Ⅱ. 국가기관의 해석관행 ························································································· 86
1. 미국과 스위스 연방대법원의 사례 86
2. 헌법변천 내지 변질 87
제7절 헌법보호 ·································································································· 88
Ⅰ. 개념과 유형 ······························································································88
Ⅱ. 역사적 고찰 ·····························································································89
Ⅲ. 현대국가의 헌법보호수단 ·················································································· 90
1. 사법권에 의한 보호수단 90
2. 입법권에 의한 보호수단 90
3. 행정권에 의한 보호수단 90
4. 국가비상사태에서 헌법보호수단 91
5. 헌법보호의 최후수단으로 저항권행사의 가능성 94

제5장 법치국가와 사회국가 96

제1절 법치국가원리 ·························································································· 96
Ⅰ. 법치국가의 역사 ································································································· 96
1. 고대 정치철학자들과 중세 파두아의 법률국가사상 96
2. 영국의 법의 지배(Rule of Law) 96
3. 19세기 근대 자유주의 법치국가 98
Ⅱ. 현대의 실질적 법치국가원리 ·········································································· 99
Ⅲ. 법치국가와 민주주의 ························································································· 99
1. 법치국가와 민주주의의 내적 연관성 99
2. 독일과 스위스에서 법치국가와 민주주의의 상이한 비중 100
제2절 사회국가원리 ························································································ 101
Ⅰ. 사회국가의 탄생 ······························································································· 101
Ⅱ. 사회적 법치국가 ······························································································· 102
1. 사회국가의 기능 102 2. 사회국가의 역동적 성격 102
3. 사회국가와 자기책임 103 4. 사회국가와 법치국가 103
Ⅲ. 사회국가사상의 형성 ························································································ 104
1. 사회적 안전의 재정적 성격 104 2. 규범적 내용 104

제6장 단일국가와 연방국가 106

제1절 단일국가의 개념과 본질 ····································································· 106
Ⅰ. 개 념 ············································································································· 106
Ⅱ. 본 질 ············································································································· 106
제2절 연방국가의 개념과 본질 ····································································· 107
Ⅰ. 연방국가의 사례와 성립배경 ········································································ 107
1. 사 례 107 2. 성립배경 108
Ⅱ. 연방국가의 이론적 전개(본질) ······································································ 108
1. 최초의 연방국가의 탄생 108
2. 주권분할론(이중 주권론) 109
3. 연방만이 주권국가이고, 지분국은 사실상 국가(단일주권론) 109
4. 연방만이 주권국가이지만 지분국은 고유권한을 행사하는 자치단체(단일주권론) 110
5. 삼원론(삼중 주권론) 110
6. 새로운 기능적 연방국가론 111
7. 소 결 111
Ⅲ. 연방국가의 개념 ······························································································· 112
1. 연방국가, 국가연합과 단일국가의 개념 112
2. 구별의 한계 112
3. 분권된 단일국가 113
Ⅳ. 연방국가의 기능발현의 전제조건 ·································································· 114
1. 지분국간의 충분한 균형 114
2. 연방과 지분국 헌법의 최소한 동질성 115
Ⅴ. 미국과 유럽의 연방국가의 모델 ·································································· 115
1. 미국의 분리모델(행정이원주의 내지 이원적 연방주의)의 권한배분 115
2. 유럽의 협력모델(집행연방주의) 116
3. 요 약 117
Ⅵ. 연방주의의 특색 ······························································································· 117
1. 개 념 117
2. 보충성원칙 118
3. 연방주의와 권력분립 119
4. 민주주의와 법치주의의 고양 120
5. 국가권력행사의 절차적 정당성보장 120
6. 소수보호와 지역적 다양성의 증진 120
7. 지방자치 121
제3절 연방과 지분국의 권한배분 ································································· 123
Ⅰ. 권한배분방법 ···················································································· 123
Ⅱ. 연방권한의 범위 ······························································································· 124
1. 입법과 집행 124 2. 입법권의 범위 124
3. 지분국권한과 관계 124
Ⅲ. 권한배분의 대상 ······························································································· 125
1. 연방입법의 대상 125 2. 지분국 입법 대상 125
Ⅳ. 독일의 연방제와 권한배분의 사례 ································································ 125
Ⅴ. 미국의 연방제와 권한배분의 사례 ································································ 128
Ⅵ. 오스트리아 연방제와 권한배분 ······································································ 129
Ⅶ. 스위스연방제와 권한배분 ················································································ 132
Ⅷ. 러시아연방제와 권한배분 ·············································································· 135
제4절 연방국가와 단일국가에서 수도의 법적 지위 ································ 136
Ⅰ. 수도의 개념 ·····························································································136
Ⅱ. 연방국가의 수도의 법적 지위 · ······································································· 136
1. 독일-독일연방의 수도 프랑크푸르트(Frankfurt am Main), 프로이센, 바이마
르공화국 및 제3제국의 수도 베를린(Berlin), 서독의 수도 본(Bonn), 통일독
일의 수도 베를린(Berlin) 137
2. 오스트리아의 수도 빈(Wien) 144
Ⅲ. 단일국가의 수도의 법적 지위 ········································································ 145
1. 헌법상 수도규정이 없는 단일국가 수도의 관습헌법적 지위 145
2. 헌법상 수도규정이 있는 단일국가 수도의 헌법핵적 지위 148
3. 소 결 150
Ⅳ. 수도 서울의 법적 지위 ···················································································· 150
1. 수도 서울의 관습헌법적 지위의 정당성 150
2. 관습헌법의 개정방법 152
제5절 연방 국가원리의 도입가능성-지방자치강화방안으로서- ··········· 153
Ⅰ. 지방분권의 헌법적 한계 ·················································································· 153
1. 헌법상 지방분권규정의 흠결 153
2. 지방분권에 관한 법률적 한계 154
Ⅱ. 연방주의 도입방향과 필요성 ·········································································· 157
1. 국가권력의 효율성증대와 체계안정 158
2. 국가기관과 지방자치단체, 지방자치단체 상호간 경쟁촉진 158
3. 남북통일의 촉진 159
4. 지역주의 극복과 승화 160

제7장 권력분립과 정부형태 161

제1절 권력분립원칙의 기원 ··········································································· 161
Ⅰ. 고 대 ············································································································· 161
Ⅱ. 근대의 권력분립원칙의 발전 ·········································································· 162
제2절 권력분립원칙과 국가기능 ··································································· 163
Ⅰ. 고전적인 국가기능의 세 가지 분리이론(소위 3권 분립원칙) · ················· 163
Ⅱ. 기타 권력분립모델 ··························································································· 163
Ⅲ. 고전적 권력분립이론과 현실적 문제-협력적 권력분립 ··························· 165
Ⅳ. 권력분립체계와 각국의 역사ㆍ정치적 전제조건 ········································· 165
제3절 권력분립사상의 개관 ··········································································· 166
Ⅰ. 전통적 요소 ···························································································· 166
1. 객관적ㆍ물적 권력분립 166 2. 주관적ㆍ인적 권력분립 166
3. 권력통제 166
Ⅱ. 종합질서로서 현대의 협력적 권력분립사상 ················································· 167
1. 입법부내 권력분립 167 2. 행정부내 권력분립 167
3. 시간적 권력분립 167 4. 수직적 권력분립 168
5. 복수정당제도 168 6. 국가권력의 기본권기속 168
7. 국군의 정치개입금지 169
제4절 정부형태-권력분립모델과 현대정치체제- ···································· 169
Ⅰ. 의원내각제 ··························································································169
1. 영국에서 의원내각제의 탄생 169 2. 의원내각제의 특징 170
3. 의원내각제국가의 사례 172 4. 평 가 177
Ⅱ. 대통령제 ····································································································178
1. 의 의 178
2. 미국의 고유한 정부형태로서의 의의 178
3. 평 가 180
Ⅲ. 이원정부제 ····························································································181
1. 의 의 181 2. 탄생과 사례 181
3. 평 가 187
Ⅳ. 스위스 정부형태 ······························································································· 187
1. 회의정부 187 2. 특 색 188
Ⅴ. 우리의 정부형태 ······························································································· 189
1. 대통령제적 요소 190 2. 의원내각제적 요소 190
3. 이원정부제적 요소 190

제8장 국 회 191

제1절 국회의 선거 ·························································································· 191
Ⅰ. 선거권의 법적 성격 ························································································· 191
Ⅱ. 선거의 기본원칙 ······························································································· 192
Ⅲ. 선거제도 ····································································································193
1. 다수대표제 193 2. 비례대표제 195
3. 다수대표제와 비례대표제의 혼합 198
제2절 단원제와 양원제 ·················································································· 205
Ⅰ. 단 원 제 ·····································································································205
Ⅱ. 양 원 제 ··································································································206
1. 양원제의 개념 206 2. 양원제의 탄생배경 206
3. 양원제에서 양원의 관계 208
제3절 국회의 운영 ·························································································· 209
Ⅰ. 국회의 집회 ····························································································209
1. 의회기 내지 입법기 209
2. 국회의 회기(session, Sitzungsperiode) 209
3. 정기회(ordinary session) 210
4. 임시회(extraordinary session) 210
Ⅱ. 국회의 의사원칙 ······························································································· 210
1. 의사공개의 원칙 210 2. 다수결원칙 210
3. 회기계속의 원칙 211 4. 일사부재의의 원칙 211
Ⅲ. 국회운영의 효율화를 위한 제도 ···································································· 211
1. 위원회 제도 211 2. 정당의 원내교섭단체 213
제4절 소위 국회선진화법의 탄생배경과 내용 ············································ 216
Ⅰ. 국회선진화법의 탄생배경 ················································································ 216
1. 야당의원의 심의ㆍ표결권침해에 대한 권한쟁의심판청구의 빈발 216
2. 여야의원들의 입법절차정상화를 위한 합의입법 218
Ⅱ. 국회선진화법의 내용 ························································································ 218
1. 위원회 안건조정제도 219
2. 직권상정제도 219
3. 무제한토론(Filibuster)제도 220
4. 법안자동상정제도 221
5. 법안신속처리제도 221
6. 예산안 등 본회의 자동부의제도 222
7. 법사위 지연법률안 본회의 부의제도 222
8. 소 결 222
Ⅲ. 국회선진화법 개정방안 ···················································································· 223
제5절 국회의 권한 ························································································ 224
Ⅰ. 중요권한 ···································································································· 224
1. 입 법 224 2. 예 산 225
3. 행정과 사법통제 225
4. 선출과 임명동의권 226
5. 중요조약 동의권 226
Ⅱ. 포괄위임입법금지원칙(협력적 입법) ···························································· 227
1. 개념과 필요성 227 2. 위임입법의 근거와 종류 227
3. 위임입법의 한계와 구체적 사례 228
Ⅲ. 국회의 자율권 ··································································································· 232
1. 규칙제정권 232 2. 의원의 자격심사와 징계권 232
제6절 국회의원의 법적 지위 ········································································· 233
Ⅰ. 자유위임의 원리 ······························································································· 233
1. 위헌정당소속 국회의원의 의원직 상실여부 233
2. 비례대표의원의 의원직 상실여부 234
3. 소속 정당제명의원의 의원직 상실여부 234
Ⅱ. 국회의원의 면책특권과 불체포특권 ···························································· 235
1. 면책특권 235 2. 불체포특권 236
Ⅲ. 국회의원의 그 밖의 권리와 의무 ·································································· 237
1. 발언권과 자료제출요구권 237
2. 교섭단체에 속하지 않은 의원의 권리 237
3. 국회의원의 의무 238
4. 국회의원의 권리보호 238

제9장 정 부 239

제1절 행정과 집행을 포괄하는 정부 ··························································· 239
Ⅰ. 행정과 집행의 개념 ························································································· 239
Ⅱ. 통치행위 ·····································································································239
제2절 대통령의 지위와 권한 ········································································· 240
Ⅰ. 헌법기관과 신분상의 지위 ·············································································· 240
1. 국가원수로서의 지위 240
2. 행정부수반으로서의 지위-행정의 최고책임자 240
3. 신분상의 지위 240
4. 취임선서와 권한대행 241
Ⅱ. 대통령의 헌법상 권한 ······················································································ 242
1. 통합기능 242 2. 대표기능 242
3. 행정기능 243 4. 위기관리기능 243
5. 입법기능 244
제3절 국무총리의 지위와 권한 ··································································· 246
Ⅰ. 헌법기관과 신분상의 지위 ·············································································· 246
1. 헌법기관 246 2. 신분상의 지위 246
Ⅱ. 국무총리의 권한 ······························································································· 247
1. 대통령의 보좌기능 247 2. 국무회의와 행정의 보좌기능 248
3. 입법기능 249
제4절 국무회의의 지위와 권한 ··································································· 249
Ⅰ. 국무회의의 헌법적 지위 ·················································································· 249
1. 정부형태에 따른 다양한 지위 249
2. 우리 국무회의의 지위 250
3. 국무위원의 신분상 지위 251
Ⅱ. 국무회의의 권한 ······························································································· 251
1. 심의기능 251 2. 합의기능 251
제5절 감사원의 지위와 권한 ······································································· 252
Ⅰ. 감사원의 헌법적 지위 ······················································································ 252
1. 헌법기관의 지위 252 2. 신분상의 지위 252
Ⅱ. 감사원의 권한 ··································································································· 252
1. 결산기능 252 2. 회계검사기능 253
3. 직무감찰기능 253 4. 감사결과처리기능 253
5. 규칙제정기능 254
Ⅲ. 감사원의 소속과 직무범위에 대한 개헌방향 ··············································· 254
1. 개 헌 안 254 2. 평 가 254
제6절 선거관리위원회의 지위와 권한 ······················································· 255
Ⅰ. 선거관리위원회의 헌법적 지위 ······································································ 255
1. 헌법기관 255 2. 신분적 지위 256
Ⅱ. 선거관리위원회의 권한 ···················································································· 256
1. 선거관리기능 256 2. 정당관리기능 257
3. 입법기능 257
Ⅲ. 선거관리위원회의 개헌방향 ············································································ 257

제10장 법 원 258

제1절 법원의 인적 구성 ················································································ 258
Ⅰ. 세계 각국의 법관임명과 임기 ········································································ 258
1. 법관임명방법 258
2. 임 기 258
Ⅱ. 우리의 법관임명과 임기 ·················································································· 259
1. 법관의 자격과 임명 259
2. 임 기 260
제2절 법원의 권한-사법권의 개념과 법관의 독립의 의미 ···················· 260
Ⅰ. 법원의 사법기능-사법권의 개념 ·································································· 260
1. 사법권의 범위 260 2. 법원의 조직과 심급제 261
3. 위헌법률심판제청권 262 4. 위헌위법명령규칙심판권 262
5. 행정처분심판권 262
Ⅱ. 법원의 부수적 기능 ························································································· 263
1. 집행 내지 행정기능 263 2. 입법기능 263
3. 헌법재판은 분리 263
Ⅲ. 사법권의 독립(법관의 독립) ·········································································· 263
1. 의 의 263 2. 일반ㆍ추상적인 규범에 기속 264
3. 독립(법관의 재판상의 독립) 264

제11장 헌법재판소 266

제1절 헌법재판의 기원과 전파 ····································································· 266
Ⅰ. 기원: 본함 박사(Dr. Bonham)사건 ······························································ 266
Ⅱ. 전 파 ············································································································· 267
1. 마베리 사건(Marbury v. Madison) 267 2. 유럽제국 268
제2절 헌법재판 일반론 ················································································ 268
Ⅰ. 개념과 기능 ·····························································································268
Ⅱ. 헌법재판의 유형과 관장사항 ·········································································· 269
1. 헌법재판의 유형 269 2. 헌법재판의 관장사항 270
Ⅲ. 헌법재판에서 정치와 법의 관계 ···································································· 270
1. 심사기준인 정치법으로서 헌법 270 2. 헌법재판의본질(정치와법치의관계) 270
3. 정치와 법의 기능배분 사례 271
제3절 헌법재판의 개별절차 ··········································································· 273
Ⅰ. 규범통제(위헌법률심판) ·················································································· 273
1. 추상적 규범통제(독자적 헌법재판) 273
2. 구체적 규범통제(부수적 헌법재판) 274
Ⅱ. 헌법소원 ·······································································································280
1. 개 념 280 2. 위헌제청형 헌법소원 280
3. 권리구제형 헌법소원 281
Ⅲ. 권한쟁의심판 ······························································································292
1. 의의와 기능 292 2. 당사자능력 294
3. 청구적격 298 4. 결 정 302
Ⅳ. 탄핵심판 ····································································································· 303
1. 의의와 기능 303 2. 기원 및 입법례 304
3. 탄핵심판과 다른 제도와 관계 305 4. 탄핵소추절차 307
5. 탄핵심판절차 309 6. 탄핵의 결정과 그 효과 309
Ⅴ. 위헌정당해산심판 ····························································································· 310
1. 의의와 연혁 310
2. 실질적 심판요건으로 민주적 기본질서 311
3. 심판청구의 형식적 요건 313
4. 위헌정당해산심판의 절차, 결정 및 그 효력 314

제12장 국가와 사회를 중개하는 조직 317

제1절 공 무 원 ································································································ 317
Ⅰ. 공무원에 관한 헌법규정 ·················································································· 317
Ⅱ. 전통적 특별권력관계론과 현대의 특별권력관계론 ····································· 318
1. 전통적 특별권력관계와 특징 318
2. 현대의 특별권력관계와 특징 318
3. 소 결 319
Ⅲ. 공무원의 기본권적 지위 ················································································ 319
1. 헌법상 공무원의 이중적 지위 319
2. 실제상 3개 생활영역의 구분에 의한 지위모색 319
Ⅳ. 직업공무원제도의 해체론 ················································································ 321
제2절 정 당 ································································································ 322
Ⅰ. 대의민주주의에서 정당의 헌법적 지위와 기능 ··········································· 322
Ⅱ. 정당체제와 기능 ······························································································· 324
1. 정당체제 324 2. 기 능 325
Ⅲ. 정당의 자유와 평등(정당의 헌법상 권리 내지 기본권) ··························· 326
Ⅳ. 위헌정당과 정당특권 ························································································ 327
Ⅴ. 정당재정에 있어서 자유와 평등 ···································································· 328
Ⅵ. 정당의 목적, 조직과 활동의 민주화(당내민주주의) ·································· .329
Ⅶ. 정당과 헌법소송 ······························································································· 330
제3절 시민단체와 사회운동 ···········································································331
Ⅰ. 시민단체의 개념과 의의 ··················································································331
Ⅱ. 국가와 시민단체의 관계 ·················································································· 331
1. 국회의원이나 지방선거에 영향 332
2. 국회입법에 영향 332
3. 집행에 영향 333
4. 시민단체의 이해관계를 대변하는 특별위원회 333
5. 사법에 영향 333
Ⅲ. 사회운동 ·····································································································334
사항색인 ·············································································································· 335