1권 총론편

제1편 헌법 서론
제1장 헌법의 일반이론
제1절 헌법의 의의 ··················································· 16
1 헌법의 개념 ················································· 16
2 헌법개념의 이중성 ······································ 18
3 역사적 발전과정에서의 헌법 ······················· 19
4 존재형식과 내용을 기준으로 한 헌법 ········· 22
제2절 헌법의 분류 ··················································· 24
1 제정주체에 따른 분류 ································· 24
2 존재형식에 따른 분류 ································· 24
3 개정절차의 난이(難易)에 따른 분류 ············ 30
4 헌법의 새로운 분류방법 ······························ 31
제3절 헌법의 특성 ··················································· 32
1 사실적 특성 ················································· 32
2 규범적 특성 ················································· 33
3 구조적 특성 ················································· 34
제4절 헌법의 해석 ··················································· 35
1 헌법해석의 의의 ·········································· 35
2 헌법해석의 원칙 ·········································· 35
3 헌법해석의 종류 ·········································· 36
4 합헌적 법률해석 ·········································· 37
제5절 헌법관 ····························································· 39
1 규범주의적 헌법관 ······································ 39
2 결단주의적 헌법관 ······································ 43
3 통합주의적 헌법관 ······································ 45
제2장 헌법의 제정과 개정
제1절 헌법의 제정 ··················································· 48
1 헌법제정권력의 개설 ··································· 48
2 헌법제정권력이론의 성립과 학자의 이론 ··· 49
3 헌법제정권력의 주체 ··································· 51
4 헌법제정권력의 본질 ··································· 51
5 헌법제정권력의 학설과 한계 ······················· 52
제2절 헌법의 개정 ··················································· 53
1 개 설 ···························································· 53
2 헌법개정의 형식과 방법 ······························ 54
3 헌법개정과 비교되는 개념 ·························· 54
4 헌법개정의 한계와 학설 ······························ 56
5 우리나라 헌법의 개정절차 ·························· 59
제2편 대한민국 헌법
제1장 헌법의 제정·개정에 대한 내용 및 북한의 헌법
제1절 임시정부 헌법 ··············································· 66
1 임시정부 헌법의 구성 ································· 66
2 임시정부 헌법의 특징 ································· 66
제2절 제1공화국 헌법 ············································· 67
1 제헌헌법(건국헌법) ······································ 67
2 제1차 개헌(발췌개헌) ·································· 69
3 제2차 개헌(사사오입개헌) ··························· 70
제3절 제2공화국 헌법 ············································· 71
1 제3차 개헌 ··················································· 71
2 제4차 개헌 ··················································· 73
제4절 제3공화국 헌법 ············································· 74
1 제5차 개헌 ··················································· 74
2 제6차 개헌(3선개헌) ··································· 75
제5절 제4공화국 헌법 ? 제7차 개헌 ···················· 76
제6절 제5공화국 헌법 ? 제8차 개헌 ···················· 78
제7절 제6공화국 헌법 ? 제9차 개헌 ··················· 79
제8절 북한헌법 ························································· 83
1 북한의 제헌헌법 ·········································· 83
2 북한헌법의 개정과정(제8차 개헌) ··············· 83
3 북한의 제7차 개정헌법 ······························· 83
제2장 헌법의 보장
제1절 헌법보장의 기초이론 ··································· 86
1 개 설 ···························································· 86
2 헌법보장과 국가보장의 비교 ······················· 86
3 헌법의 수호자 ·············································· 87
4 헌법보장의 유형 ·········································· 87
제2절 현행 헌법상의 헌법보장제도 ····················· 88
1 평상시의 헌법보장제도 ······························· 88
2 비상시의 헌법보장제도 ······························· 89
제3장 국가론 및 대한민국 국가의 형태
제1절 국가론 ····························································· 100
1 국가에 대한 개설 ········································· 100
2 국가의 기원에 대한 학설 ····························· 100
3 국가의 본질에 대한 학설 ····························· 101
4 국가형태의 분류 ·········································· 102
제2절 우리나라의 구성요소 ··································· 104
1 국 민 ···························································· 104
2 영 역 ···························································· 116
3 주 권 ···························································· 122
제4장 헌법전문과 헌법의 기본원리
제1절 헌법전문 ························································· 124
1 개 설 ···························································· 124
2 헌법전문의 법적인 성격 ······························ 124
3 헌법전문의 법적 성질에 대한 학설 ············· 126
4 헌법전문의 내용 ·········································· 126
제2절 국민주권주의의 원리 ··································· 127
1 국민주권주의의 개설 ··································· 127
2 주권의 본질 ················································· 127
3 주권론의 발달과정 ······································ 127
4 국민의 개념 ················································· 128
5 국민의 성격에 대한 학설 ····························· 130
6 국민의 범위에 대한 학설 ····························· 130
7 국민주권주의 원리의 제도적 구현 ·············· 130
8 국민의 헌법상 지위 ····································· 131
제3절 민주주의의 원리 ··········································· 131
1 개 설 ···························································· 131
2 민주주의의 유형 ·········································· 132
3 민주주의의 성격 ·········································· 132
4 민주주의의 내용 ·········································· 132
5 민주주의의 위기원인 ··································· 133
6 방어적 민주주의와 관련되는 독일판례 ······· 133
제4절 법치주의의 원리 ··········································· 135
1 개 설 ···························································· 135
2 각국의 발달과정과 학자의 주장 ·················· 135
3 법치주의의 구성요소 ··································· 137
4 법치행정의 원칙 ·········································· 137
5 신뢰보호의 원칙 ·········································· 138
6 법치주의의 예외 ·········································· 144
7 진정소급입법과 부진정소급입법 ················· 145
8 법치주의의 위기원인 ··································· 147
제5절 문화국가의 원리 ··········································· 148
1 개 설 ···························································· 148
2 문화국가의 내용 ·········································· 148
3 문화국가에 대한 현대적 고찰 ····················· 149
제6절 복지국가의 원리 ··········································· 151
1 개 설 ···························································· 151
2 복지국가원리의 실현수단 ···························· 151
3 복지국가의 한계 ·········································· 152
제7절 국제평화주의 ················································· 152
1 개 념 ···························································· 152
2 국제평화주의와 각국의 유형 ······················· 152
3 국제평화주의의 내용 ··································· 154
4 국제조약 ······················································ 155
제5장 대한민국 헌법의 기본제도
제1절 정당제도 ························································· 162
1 개 설 ···························································· 162
2 정당제도의 연혁 ·········································· 164
3 정당의 헌법상 지위에 관한 학설 ················ 164
4 정당의 법적 형태에 대한 법원과 헌법재판소
의 견해 ························································ 164
5 정당의 설립과 조직 ····································· 165
6 정당의 등록과 취소 ····································· 169
7 정당의 운영 ················································· 170
8 정당의 특권과 의무 ····································· 171
9 정당의 해산 ················································· 177
제2절 선거제도 ························································· 186
1 개 설 ···························································· 186
2 선거의 종류 ················································· 187
3 선거의 5대 기본원칙 ··································· 189
4 대표제의 형태 ·············································· 196
5 선거구 ·························································· 200
6 선거공영제 ·················································· 201
7 우리나라의 선거구제 ··································· 202
8 공직선거법 ·················································· 208
제3절 공무원제도 ····················································· 241
1 개 설 ···························································· 241
2 공무원의 헌법상 지위에 대한 고찰 ············· 241
3 직업공무원제도의 내용 ······························· 241
4 공무원의 기본권 제한 ································· 252
5 공무원의노동조합설립및운영등에 ··············· 263
관한법률
6 헌법재판소의 판례 ······································ 265
제4절 지방자치제도 ················································· 267
1 지방자치제의 개설 ······································ 267
2 지방자치제의 유형 ······································ 268
3 지방자치단체의 종류 ··································· 269
4 지방자치단체의 구성요소 ···························· 270
5 지방자치단체의 권한 ··································· 278
6 지방자치단체의 기관 ··································· 283
7 지방자치단체의 사무 ··································· 288
8 지방자치단체에 대한 주민의 통제 ·············· 291
9 지방자치단체에 대한 국가의 지도?감독 ··· 296
제5절 경제제도 ························································· 300
1 개 설 ···························································· 300
2 사회적 시장경제 ·········································· 301
3 경제적 기본질서에 관한 헌법규정의 내용 ·· 301
제6절 군사제도 ························································· 309
1 국가와 군사제도 ·········································· 309
2 현행 헌법의 군사조항 ································· 309
3 군사에 관한 헌법원칙 ································· 310
4 군사제도와 군통수권 ··································· 311
5 군사제도를 위한 기본권 제한 ····················· 311
제3편 기본권
제1장 기본권 총론
제1절 기본권 개설 ··················································· 316
1 기본권의 의의 ·············································· 316
2 기본권의 법적 성격 ····································· 316
3 인권보장의 역사 ·········································· 318
4 기본권과 제도적 보장 ································· 321
제2절 기본권의 분류 ··············································· 322
1 주체를 기준으로 한 분류 ····························· 322
2 성질을 기준으로 한 분류 ····························· 323
3 효력을 기준으로 한 분류 ····························· 323
제3절 기본권의 주체 ··············································· 324
1 개 설 ···························································· 324
2 국 민 ···························································· 324
3 외국인 ·························································· 325
4 법 인 ···························································· 329
제4절 기본권의 효력 ··············································· 336
1 기본권의 대국가적 효력 ······························ 336
2 기본권의 대사인적 효력 ······························ 337
3 우리나라 헌법과 기본권의 대사인적 효력 ··· 338
4 미국의 이론 ················································· 339
제5절 기본권의 갈등 ··············································· 340
1 기본권의 경쟁 ·············································· 340
2 기본권의 충돌 ·············································· 341
제6절 기본권의 제한 ··············································· 343
1 기본권 제한의 개설 ····································· 343
2 기본권 제한의 종류 ····································· 344
3 기본권 제한의 요건 ····································· 345
4 기본권 제한의 정도에 관한 원칙 ················ 346
5 기본권 제한의 한계 ····································· 354
제7절 기본권의 침해와 구제 ································· 355
1 개 설 ···························································· 355
2 기본권의 침해와 구제유형 ·························· 355
3 국가인권위원회 ··········································· 362
4 행정조사기본법 ··········································· 365
제2장 포괄적 기본권
제1절 인간의 존엄과 가치 ····································· 368
1 인간의 존엄과 가치 ····································· 368
2 인간의 존엄과 가치의 내용 ························· 370
3 인간의 존엄과 가치의 효력 ························· 379
4 인간의 존엄과 가치의 제한과 한계 ············· 380
제2절 행복추구권 ····················································· 384
1 개 설 ···························································· 384
2 행복추구권의 유래 및 각국의 입법례 ········· 385
3 행복추구권의 법적 성격 ······························ 385
4 행복추구권의 내용 ······································ 386
5 행복추구권의 효력?제한 및 한계 ·············· 398
제3절 평등권 ····························································· 404
1 개 설 ···························································· 404
2 평등권의 법적 성격 ····································· 406
3 평등권의 주체 ·············································· 406
4 평등권의 내용 ·············································· 407

2권 각론편

제3편 기본권
제3장 자유권적 기본권
제1절 개 설 ······························································· 456
01 의 의 ··························································· 456
02 자유권적 기본권의 성질에 관한 견해 ········ 456
03 자유권적 기본권의 법적 성격 ···················· 457
04 자유권적 기본권의 효력 ····························· 457
05 자유권적 기본권과 사회권적
기본권의 비교 ············································ 457
제2절 신체의 자유 ··················································· 458
01 개 설 ··························································· 458
02 신체의 자유 보장을 위한 실체적 제도 ······· 458
03 신체의 자유 보장을 위한 절차적 제도 ······· 483
제3절 사회경제적 자유권 ··································· 514
01 거주이전의 자유 ····································· 514
02 직업선택의 자유 ········································· 519
03 주거의 자유 ················································ 550
04 사생활 비밀의 자유 ···································· 551
05 통신의 자유 ················································ 566
06 재산권의 보장 ············································ 570
제4절 정신적 자유권 ··············································· 603
01 양심의 자유 ················································ 603
02 종교의 자유 ················································ 609
03 언론출판의 자유 ····································· 617
04 집회의 자유 ················································ 639
05 결사의 자유 ················································ 649
06 학문의 자유 ················································ 652
07 예술의 자유 ················································ 658
08 소비자의 권리 ············································ 660
제4장 사회권적 기본권
제1절 개 설 ······························································· 664
01 사회권적 기본권의 의의 ····························· 664
02 사회권적 기본권의 연혁 ····························· 664
03 사회권적 기본권과 자유권적
기본권의 관계 ············································ 664
04 법적 성격 ···················································· 665
제2절 인간다운 생활을 할 권리 ··························· 667
01 개 설 ··························································· 667
02 인간다운 생활을 할 권리의 내용 ··············· 667
03 한계와 제한 ················································ 669
제3절 교육을 받을 권리 ········································· 678
01 개 설 ··························································· 678
02 교육을 받을 권리의 내용 ··························· 679
03 효 력 ··························································· 681
제4절 근로의 권리 ··················································· 688
01 개 설 ························································· 688
02 고용조정과 관련되는 근로기준법의 내용 ·· 689
03 근로의 권리의 내용 ···································· 689
04 효 력 ··························································· 690
제5절 근로 3권 ························································· 694
01 개 설 ··························································· 694
02 법적 성격 ···················································· 694
03 내 용 ··························································· 695
04 효력과 제한 ················································ 699
제6절 환경권 ····························································· 704
01 개 설 ··························································· 704
02 환경권의 내용 ············································ 705
03 환경권의 효력제한 및 한계 ···················· 706
04 환경분쟁의 새로운 모색 ····························· 706
제7절 혼인가족에 관한 권리 ····························· 709
01 개 설 ··························································· 709
02 혼인과 가족에 관한 권리의 내용 ··············· 710
제5장 청구권적 기본권
제1절 개 설 ······························································· 716
제2절 청원권 ····························································· 716
01 개 설 ··························································· 716
02 청원권의 내용 ············································ 717
03 청원의 절차 ················································ 717
제3절 재판청구권 ····················································· 721
01 개 설 ··························································· 721
02 재판청구권의 내용 ····································· 722
03 재판청구권의 제한 ····································· 730
제4절 국가배상청구권 ············································· 745
01 개 설 ··························································· 745
02 국가배상청구권의 요건 ······························ 746
03 국가배상책임의 본질과 공무원배상책임의
인정 여부 ···················································· 749
04 국가배상청구의 절차 ·································· 749
05 국가배상청구권의 제한 ······························ 751
제5절 형사보상청구권 ············································· 752
01 개 설 ··························································· 752
02 형사보상청구권의 성립요건 ······················· 753
03 형사보상청구의 절차와 보상금 ·················· 754
제6절 범죄피해자구조청구권 ·································· 758
01 개 설 ··························································· 758
02 범죄피해자구조청구권의 성립요건 ············ 759
03 범죄피해자구조금의 청구절차 ··················· 762
04 범죄피해자구조청구권의 제한 ··················· 762
제6장 참정권
제1절 개 설 ······························································· 764
01 참정권의 의의 ············································ 764
02 참정권의 법적 성격 ···································· 764
03 참정권의 주체 ············································ 764
04 참정권의 종류 ············································ 765
05 참정권의 제한과 그 한계 ··························· 765
제2절 선거권 ····························································· 766
01 의 의 ··························································· 766
02 선거권이 없는 자 ······································· 766
제3절 공무담임권 ····················································· 769
01 의 의 ··························································· 769
02 공무원으로 임용될 수 없는 자 ··················· 770
제4절 국민투표권 ····················································· 775
01 의 의 ························································· 775
02 국민투표권 행사의 기능 ····························· 775
03 대통령의 재신임에 대한 국민투표 ············· 776
04 국민투표의 유형 ········································· 778
제7장 국민의 헌법상 의무
제1절 국민의 기본적 의무의 개설 ······················· 780
제2절 국민의 기본적 의무의 내용 ······················· 780
01 고전적인 국민의 의무 ································ 780
02 현대적 의무 ··············································· 782
제4편 통치구조
제1장 통치구조의 조직원리와 형태
제1절 통치구조의 개설 ··········································· 786
01 통치구조의 의의 ········································· 786
02 통치구조와 헌법관 ····································· 786
제2절 통치구조의 조직원리 ··································· 787
01 대의제 ························································ 787
02 직접민주제 ················································· 788
03 권력분립의 원리 ········································· 789
제3절 통치구조의 형태 ··········································· 792
01 대통령제 ····················································· 792
02 의원내각제 ················································· 794
03 이원정부제 ················································· 795
04 회의제 ························································ 796
05 우리나라의 통치구조형태 ·························· 797
제2장 입법부
제1절 의회제도의 개설 ··········································· 798
01 연 혁 ··························································· 798
02 의회제도의 기본적인 원리 ························· 798
03 국회의 헌법상의 지위 ································ 799
04 국회의 구성 ················································ 799
제2절 국회의 회의 ··················································· 813
01 국회회의의 유형 ········································· 813
02 국회회의의 원칙 ········································· 815
제3절 국회의 권한 ··················································· 820
01 입법에 관한 권한 ······································· 820
02 재정에 관한 권한 ······································· 827
03 헌법기관구성에 관한 권한 ························· 836
04 국정통제에 관한 권한 ································ 836
05 국회의 자율권 ············································ 846
제4절 국회의원의 지위 ··········································· 849
01 국회의원의 특권 ········································· 849
02 국회의원의 권리와 의무 ····························· 852
03 국회의원의 징계 ········································· 855
04 의회제도의 위기원인과 대책 ······················ 856
05 국회법의 중요사항 ····································· 857
06 국회예산정책처 ·········································· 859
제3장 대통령
제1절 대통령에 대한 개설 ····································· 860
01 현행 헌법상 대통령의 지위 ························ 860
02 대통령선거 ················································· 861
03 대통령의 취임선서 ····································· 863
04 대통령의 특권 ············································ 864
05 대통령의 책무와 의무 ································ 865
06 대통령의 권한대행 ····································· 865
제2절 대통령의 권한 ··············································· 866
01 행정에 관한 권한 ······································· 866
02 입법에 관한 권한 ······································· 868
03 사법에 관한 권한 ······································· 869
04 헌법기관 구성에 관한 권한 ························ 872
05 대통령의 비상적 권한 ································ 873
제3절 대통령의 권한행사방법과 통제 ················· 881
01 문서주의 ····················································· 881
02 부서제도 ····················································· 881
03 국무회의의 심의 ········································· 881
04 각종 자문기관의 자문 ································ 881
제4절 대통령의 자문기관 ······································· 882
01 국가원로자문회의 ······································· 882
02 국가안전보장회의 ······································· 882
03 민주평화통일자문회의 ······························· 882
04 국민경제자문회의 ······································· 882
05 국가과학기술자문회의 ······························· 882
제5절 전직대통령의 예우 ······································· 883
01 개 설 ··························································· 883
02 전직대통령의 예우의 내용 ························· 883
03 전직대통령의 예우 불인정 ························· 884
제4장 행정부
제1절 개 설 ······························································· 886
01 정부(행정부)에 대한 학문적인 분류
(다수적 견해) ·············································· 886
02 현행 헌법 제4장 제2절과 관련된 행정부 ·· 886
03 현행 헌법 제86조 제2항 ···························· 887
제2절 국무총리 ························································· 887
01 연 혁 ··························································· 887
02 지 위 ··························································· 887
03 국무총리의 신분상 지위 ····························· 888
04 국무총리의 권한 ········································· 890
제3절 국무위원과 행정각부 ··································· 899
01 국무위원 ····················································· 899
02 행정각부의 장 ············································ 899
제4절 국무회의 ························································· 900
01 개 설 ··························································· 900
02 구 성 ··························································· 901
03 국무회의의 헌법상 지위 ····························· 901
04 국무회의의 심의절차와 심의사항 ·············· 902
제5절 감사원 ····························································· 904
01 개 설 ··························································· 904
02 감사원의 권한 ············································ 905
제6절 선거관리위원회 ············································· 908
01 개 설 ··························································· 908
02 중앙선거관리위원회의 운영과 권한 ··········· 908
제5장 사법부
제1절 사법부에 대한 개설 ····································· 910
01 사법의 개념 ················································ 910
02 사법의 본질과 그 기능 ······························· 910
제2절 법원의 헌법상 지위 ····································· 911
01 사법기관으로서의 지위 ······························ 911
02 독립적중립적 기관으로서의 지위 ·········· 911
03 헌법수호기관으로서의 지위 ······················· 911
04 기본권 보장기관으로서의 지위 ·················· 911
제3절 사법권의 한계 ············································· 911
01 실정법상의 한계 ········································· 911
02 국제법상의 한계 ········································· 912
03 사법본질상의 한계 ····································· 912
04 권력분립상의 한계 ····································· 913
05 통치행위 ····················································· 913
제4절 법원의 조직 ··················································· 916
01 대법원 ························································ 916
02 고등법원 ····················································· 920
03 지방법원 ····················································· 921
04 지방법원 지원과 지방법원소년부 지원 ······ 921
05 시군법원 ················································· 921
06 특별법원 ····················································· 922
제5절 사법권의 독립 ··············································· 924
01 개 설 ··························································· 924
02 법원의 독립 ················································ 924
03 법관의 독립 ················································ 925
제6절 법원의 권한 ··················································· 931
01 의 의 ··························································· 931
02 재판권 ························································ 931
03 명령규칙심사권 ······································ 931
04 위헌법률심판제청권 ··································· 933
05 법정질서유지권 ·········································· 934
06 대법원의 규칙제정권 ·································· 935
제7절 사법의 절차와 운영 ····································· 935
01 재판의 심급제 ············································ 935
02 재판의 공개제도 ········································· 937
03 재판의 배심제도 ········································· 937
제8절 법정의 질서유지 ··········································· 941
01 개 설 ··························································· 941
02 법정질서유지권 ·········································· 941
03 법정질서유지권의 한계 ······························ 941
제6장 헌법재판소
제1절 헌법재판소에 대한 서론 ····························· 942
01 개 설 ··························································· 942
02 각국의 헌법재판기관 ·································· 942
03 우리나라 헌법재판제도의 연혁 ·················· 944
04 헌법재판소의 헌법상 지위 ························· 944
05 헌법재판소의 구성과 운영 ························· 945
제2절 헌법재판소의 심판절차 ······························· 947
01 심판의 주체 및 당사자 ······························· 947
02 심판청구 ····················································· 949
03 심 리 ··························································· 950
04 종국결정 ····················································· 952
제3절 헌법재판소의 권한 ······································· 956
01 위헌법률심판권 ·········································· 956
02 탄핵심판권(국회권한 참조) ························ 965
03 위헌정당해산권(정당제도 참조) ················· 965
04 권한쟁의심판권 ·········································· 965
05 헌법소원심판권 ·········································· 978
06 헌법재판소의 변형결정 ······························ 1008
색인(INDEX)
사항색인 ···································································· 1017
판례색인 ···································································· 1023

제2장 포괄적 기본권
기출?예상문제 ······················································· 86
판례문제 ··································································· 95
제3장 자유권적 기본권
기출?예상문제 ······················································· 97
판례문제 ··································································· 135
제4장 사회권적 기본권
기출?예상문제 ······················································· 137
판례문제 ··································································· 147
제5장 청구권적 기본권
기출?예상문제 ······················································· 150
판례문제 ··································································· 159
제6장 참정권
기출?예상문제 ······················································· 161
판례문제 ··································································· 166
제7장 국민의 헌법상 의무
기출?예상문제 ······················································· 168
판례문제 ··································································· 171
제4편 통치구조
제1장 통치구조의 조직원리와 형태
기출?예상문제 ······················································· 174
판례문제 ··································································· 178
제2장 입법부
기출?예상문제 ······················································· 179
판례문제 ··································································· 207
제3장 대통령
기출?예상문제 ······················································· 210
판례문제 ··································································· 222
제4장 행정부
기출?예상문제 ······················································· 224
판례문제 ··································································· 234
제5장 사법부
기출?예상문제 ······················································· 236
판례문제 ··································································· 245
제6장 헌법재판소
기출?예상문제 ······················································· 246
판례문제 ··································································· 266

별책부록

관련법률
대한민국 헌법 4
헌법재판소법 23
감사우너법 41
법원조직법 57
국민의 형사재판 참여에 관한 법률 81