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제1편 헌법 서론 제1장 헌법의 일반이론 제1절 헌법의 의의 ······················································· 18 01 헌법의 개념 ······················································ 18 02 헌법개념의 이중성 ··········································· 20 03 역사적 발전과정에서의 헌법 ···························· 21 04 존재형식과 내용을 기준으로 한 헌법 ··············· 24 제2절 헌법의 분류 ······················································· 26 01 제정주체에 따른 분류 ······································· 26 02 존재형식에 따른 분류 ······································· 26 03 개정절차의 난이(難易)에 따른 분류 ················· 32 04 헌법의 새로운 분류방법 ··································· 33 제3절 헌법의 특성 ······················································· 34 01 사실적 특성 ······················································ 34 02 규범적 특성 ······················································ 35 03 구조적 특성 ······················································ 36 제4절 헌법의 해석 ······················································· 37 01 헌법해석의 의의 ··············································· 37 02 헌법해석의 원칙 ··············································· 37 03 헌법해석의 종류 ··············································· 38 04 합헌적 법률해석 ··············································· 39 제5절 헌법관 ································································· 41 01 규범주의적 헌법관(법실증주의 헌법관) ··········· 41 02 결단주의적 헌법관 ··········································· 45 03 통합주의적 헌법관 ··········································· 47 제2장 헌법의 제정과 개정 제1절 헌법의 제정 ······················································· 52 01 헌법제정권력의 개설 ········································ 52 02 헌법제정권력이론의 성립과 학자의 이론 ········· 53 03 헌법제정권력의 주체 ········································ 55 04 헌법제정권력의 본질 ········································ 55 05 헌법제정권력의 학설과 한계 ···························· 56 제2절 헌법의 개정 ······················································· 57 01 개 설 ································································ 57 02 헌법개정의 형식과 방법 ··································· 58 03 헌법개정과 비교되는 개념 ······························· 58 04 헌법개정의 한계와 학설 ··································· 60 05 우리나라 헌법의 개정절차 ······························· 63 제2편 대한민국 헌법 제1장 헌법의 제정·개정에 대한 내용 및 북한의 헌법 제1절 임시정부 헌법 ·················································· 72 01 임시정부 헌법의 구성 ······································· 72 02 임시정부 헌법의 특징 ······································· 72 제2절 제1공화국 헌법 ················································ 73 01 제헌헌법(건국헌법) ·········································· 73 02 제1차 개헌(발췌개헌) ······································ 75 03 제2차 개헌(사사오입개헌) ······························· 76 제3절 제2공화국 헌법 ················································ 77 01 제3차 개헌 ······················································· 77 02 제4차 개헌 ······················································· 79 제4절 제3공화국 헌법 ················································ 80 01 제5차 개헌 ······················································· 80 02 제6차 개헌(3선개헌) ······································· 81 제5절 제4공화국 헌법-7차 개헌 ··························· 82 제6절 제5공화국 헌법-8차 개헌 ··························· 84 제7절 제6공화국 헌법-9차 개헌 ··························· 85 제8절 북한헌법 ···························································· 89 01 북한의 제헌헌법 ··············································· 89 02 북한헌법의 개정과정 ········································ 89 03 북한의 제7차 개정헌법 ···································· 89 제2장 헌법의 보장 제1절 헌법보장의 기초이론 ····································· 94 01 개 설 ································································ 94 02 헌법보장과 국가보장의 비교 ···························· 94 03 헌법의 수호자 ·················································· 95 04 헌법보장의 유형 ··············································· 95 제2절 현행 헌법상의 헌법보장제도 ······················· 96 01 평상시의 헌법보장제도 ···································· 96 02 비상시의 헌법보장제도 ···································· 97 제3장 국가론 및 대한민국 국가의 형태 제1절 국가론 ································································· 110 01 국가에 대한 개설 ·············································· 110 02 국가의 기원에 대한 학설 ·································· 110 03 국가의 본질에 대한 학설 ·································· 111 04 국가형태의 분류 ··············································· 112 제2절 우리나라의 구성요소 ····································· 114 01 국 민 ································································ 114 02 영 역 ································································ 129 03 주 권 ································································ 136 제4장 헌법전문과 헌법의 기본원리 제1절 헌법전문 ···························································· 138 01 개 설 ································································ 138 02 헌법전문의 법적인 성격 ··································· 138 03 헌법전문의 법적 성질에 대한 학설 ··················· 140 04 헌법전문의 내용 ··············································· 140 제2절 국민주권주의의 원리 ····································· 141 01 국민주권주의의 개설 ········································ 141 02 주권의 본질 ······················································ 141 03 주권론의 발달과정 ··········································· 141 04 국민의 개념 ······················································ 142 05 국민의 성격에 대한 학설 ·································· 144 06 국민의 범위에 대한 학설 ·································· 144 07 국민주권주의 원리의 제도적 구현 ···················· 144 08 국민의 헌법상 지위 ·········································· 145 제3절 민주주의의 원리 ·············································· 145 01 개 설 ································································ 145 02 민주주의의 유형 ··············································· 146 03 민주주의의 성격 ··············································· 146 04 민주주의의 내용 ··············································· 146 05 민주주의의 위기원인 ········································ 147 06 방어적 민주주의와 관련되는 독일판례 ············· 147 제4절 법치주의의 원리 ·············································· 149 01 개 설 ································································ 149 02 각국의 발달과정과 학자의 주장 ······················· 149 03 법치주의의 구성요소 ········································ 151 04 법치행정의 원칙 ··············································· 151 05 신뢰보호의 원칙 ··············································· 152 06 법치주의의 예외 ··············································· 161 07 진정소급입법과 부진정소급입법 ······················ 162 08 법치주의의 위기원인 ········································ 163 제5절 문화국가의 원리 ·············································· 164 01 개 설 ································································ 164 02 문화국가의 내용 ··············································· 165 03 문화국가에 대한 현대적 고찰 ··························· 165 제6절 복지국가의 원리 ·············································· 168 01 개 설 ································································ 168 02 복지국가원리의 실현수단 ································ 168 03 복지국가의 한계 ··············································· 168 제7절 국제평화주의 ···················································· 169 01 개 념 ································································ 169 02 국제평화주의와 각국의 유형 ···························· 169 03 국제평화주의의 내용 ········································ 170 04 국제조약 ·························································· 172 제5장 대한민국 헌법의 기본제도 제1절 정당제도 ···························································· 182 01 개 설 ································································ 182 02 정당제도의 연혁 ··············································· 184 03 정당의 헌법상 지위에 관한 학설 ······················ 184 04 정당의 법적 형태에 대한 법원과 ······················ 184 헌법재판소의 견해 05 정당의 설립과 조직 ·········································· 185 06 정당의 등록과 취소 ·········································· 189 07 정당의 운영 ······················································ 190 08 정당의 특권과 의무 ·········································· 191 09 정당의 해산 ······················································ 202 제2절 선거제도 ···························································· 210 01 개 설 ································································ 210 02 선거의 종류 ······················································ 210 03 선거의 5대 기본원칙 ········································ 212 04 대표제의 형태 ·················································· 221 05 선거구 ······························································ 225 06 선거공영제 ······················································· 227 07 우리나라의 선거구제 ········································ 227 08 공직선거법 ······················································· 234 제3절 공무원제도 ························································ 268 01 개 설 ································································ 268 02 공무원의 헌법상 지위에 대한 고찰 ··················· 268 03 직업공무원제도의 내용 ···································· 269 04 공무원의 기본권 제한 ······································· 279 (특별권력관계에 있는 자의 기본권 제한) 05 공무원의노동조합설립및운영등에관한법률 ····· 285 06 헌법재판소의 판례 ··········································· 286 제4절 지방자치제도 ···················································· 294 01 지방자치제의 개설 ··········································· 294 02 지방자치제의 유형 ··········································· 295 03 지방자치단체의 종류 ········································ 296 04 지방자치단체의 구성요소 ································ 297 05 지방자치단체의 권한 ········································ 305 06 지방자치단체의 기관 ········································ 310 07 지방자치단체의 사무 ········································ 316 08 지방자치단체에 대한 주민의 통제 ···················· 318 09 지방자치단체에 대한 국가의 지도·감독 ········· 324 제5절 경제제도 ···························································· 329 01 개 설 ································································ 329 02 사회적 시장경제 ··············································· 329 03 경제적 기본질서에 관한 헌법규정의 내용 ········ 330 제6절 군사제도 ···························································· 338 01 국가와 군사제도 ··············································· 338 02 현행 헌법의 군사조항 ······································· 338 03 군사에 관한 헌법원칙 ······································· 338 04 군사제도와 군통수권 ········································ 340 05 군사제도를 위한 기본권 제한 ··························· 341 제3편 기본권 제1장 기본권 총론 제1절 기본권 개설 ······················································· 350 01 기본권의 의의 ·················································· 350 02 기본권의 법적 성격 ·········································· 350 03 인권보장의 역사 ··············································· 352 04 기본권과 제도적 보장 ······································· 355 제2절 기본권의 분류 ·················································· 356 01 주체를 기준으로 한 분류 ·································· 356 02 성질을 기준으로 한 분류 ·································· 357 03 효력을 기준으로 한 분류 ·································· 357 제3절 기본권의 주체 ·················································· 358 01 개 설 ································································ 358 02 국 민 ································································ 358 03 외국인 ······························································ 359 04 법 인 ································································ 364 제4절 기본권의 효력 ·················································· 371 01 기본권의 대국가적 효력 ··································· 371 02 기본권의 대사인적 효력(제3자적 효력) ············ 372 03 우리나라 헌법과 기본권의 대사인적 효력 ········ 373 04 미국의 이론 ······················································ 374 제5절 기본권의 갈등 ·················································· 375 01 기본권의 경쟁 ·················································· 375 02 기본권의 충돌 ·················································· 376 제6절 기본권의 제한 ·················································· 378 01 기본권 제한의 개설 ·········································· 378 02 기본권 제한의 종류 ·········································· 379 03 기본권 제한의 요건 ·········································· 380 04 기본권 제한의 정도에 관한 원칙 ······················ 381 05 기본권 제한의 한계(본질적 내용의 침해금지) ·· 392 제7절 기본권의 침해와 구제 ···································· 393 01 개 설 ································································ 393 02 기본권의 침해와 구제유형 ······························· 394 03 국가인권위원회 ················································ 400 04 행정조사기본법 ················································ 404 제2장 포괄적 기본권 제1절 인간의 존엄과 가치 ········································ 406 01 인간의 존엄과 가치 ·········································· 406 02 인간의 존엄과 가치의 내용 ······························ 408 03 인간의 존엄과 가치의 효력 ······························ 418 04 인간의 존엄과 가치의 제한과 한계 ··················· 418 제2절 행복추구권 ························································ 423 01 개 설 ································································ 423 02 행복추구권의 유래 및 각국의 입법례 ··············· 424 03 행복추구권의 법적 성격 ··································· 424 04 행복추구권의 내용 ··········································· 425 05 행복추구권의 효력·제한 및 한계 ··················· 436 제3절 평등권 ································································· 443 01 개 설 ································································ 443 02 평등권의 법적 성격 ·········································· 445 03 평등권의 주체 ·················································· 446 04 평등권의 내용 ·················································· 446 |
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총론편
제1편 헌법 서론 제1장 헌법의 일반이론 제1절 헌법의 의의 ······················································· 18 01 헌법의 개념 ······················································ 18 02 헌법개념의 이중성 ··········································· 20 03 역사적 발전과정에서의 헌법 ···························· 21 04 존재형식과 내용을 기준으로 한 헌법 ··············· 24 제2절 헌법의 분류 ······················································· 26 01 제정주체에 따른 분류 ······································· 26 02 존재형식에 따른 분류 ······································· 26 03 개정절차의 난이(難易)에 따른 분류 ················· 32 04 헌법의 새로운 분류방법 ··································· 33 제3절 헌법의 특성 ······················································· 34 01 사실적 특성 ······················································ 34 02 규범적 특성 ······················································ 35 03 구조적 특성 ······················································ 36 제4절 헌법의 해석 ······················································· 37 01 헌법해석의 의의 ··············································· 37 02 헌법해석의 원칙 ··············································· 37 03 헌법해석의 종류 ··············································· 38 04 합헌적 법률해석 ··············································· 39 제5절 헌법관 ································································· 41 01 규범주의적 헌법관(법실증주의 헌법관) ··········· 41 02 결단주의적 헌법관 ··········································· 45 03 통합주의적 헌법관 ··········································· 47 제2장 헌법의 제정과 개정 제1절 헌법의 제정 ······················································· 52 01 헌법제정권력의 개설 ········································ 52 02 헌법제정권력이론의 성립과 학자의 이론 ········· 53 03 헌법제정권력의 주체 ········································ 55 04 헌법제정권력의 본질 ········································ 55 05 헌법제정권력의 학설과 한계 ···························· 56 제2절 헌법의 개정 ······················································· 57 01 개 설 ································································ 57 02 헌법개정의 형식과 방법 ··································· 58 03 헌법개정과 비교되는 개념 ······························· 58 04 헌법개정의 한계와 학설 ··································· 60 05 우리나라 헌법의 개정절차 ······························· 63 제2편 대한민국 헌법 제1장 헌법의 제정·개정에 대한 내용 및 북한의 헌법 제1절 임시정부 헌법 ·················································· 72 01 임시정부 헌법의 구성 ······································· 72 02 임시정부 헌법의 특징 ······································· 72 제2절 제1공화국 헌법 ················································ 73 01 제헌헌법(건국헌법) ·········································· 73 02 제1차 개헌(발췌개헌) ······································ 75 03 제2차 개헌(사사오입개헌) ······························· 76 제3절 제2공화국 헌법 ················································ 77 01 제3차 개헌 ······················································· 77 02 제4차 개헌 ······················································· 79 제4절 제3공화국 헌법 ················································ 80 01 제5차 개헌 ······················································· 80 02 제6차 개헌(3선개헌) ······································· 81 제5절 제4공화국 헌법-7차 개헌 ··························· 82 제6절 제5공화국 헌법-8차 개헌 ··························· 84 제7절 제6공화국 헌법-9차 개헌 ··························· 85 제8절 북한헌법 ···························································· 89 01 북한의 제헌헌법 ··············································· 89 02 북한헌법의 개정과정 ········································ 89 03 북한의 제7차 개정헌법 ···································· 89 제2장 헌법의 보장 제1절 헌법보장의 기초이론 ····································· 94 01 개 설 ································································ 94 02 헌법보장과 국가보장의 비교 ···························· 94 03 헌법의 수호자 ·················································· 95 04 헌법보장의 유형 ··············································· 95 제2절 현행 헌법상의 헌법보장제도 ······················· 96 01 평상시의 헌법보장제도 ···································· 96 02 비상시의 헌법보장제도 ···································· 97 제3장 국가론 및 대한민국 국가의 형태 제1절 국가론 ································································· 110 01 국가에 대한 개설 ·············································· 110 02 국가의 기원에 대한 학설 ·································· 110 03 국가의 본질에 대한 학설 ·································· 111 04 국가형태의 분류 ··············································· 112 제2절 우리나라의 구성요소 ····································· 114 01 국 민 ································································ 114 02 영 역 ································································ 129 03 주 권 ································································ 136 제4장 헌법전문과 헌법의 기본원리 제1절 헌법전문 ···························································· 138 01 개 설 ································································ 138 02 헌법전문의 법적인 성격 ··································· 138 03 헌법전문의 법적 성질에 대한 학설 ··················· 140 04 헌법전문의 내용 ··············································· 140 제2절 국민주권주의의 원리 ····································· 141 01 국민주권주의의 개설 ········································ 141 02 주권의 본질 ······················································ 141 03 주권론의 발달과정 ··········································· 141 04 국민의 개념 ······················································ 142 05 국민의 성격에 대한 학설 ·································· 144 06 국민의 범위에 대한 학설 ·································· 144 07 국민주권주의 원리의 제도적 구현 ···················· 144 08 국민의 헌법상 지위 ·········································· 145 제3절 민주주의의 원리 ·············································· 145 01 개 설 ································································ 145 02 민주주의의 유형 ··············································· 146 03 민주주의의 성격 ··············································· 146 04 민주주의의 내용 ··············································· 146 05 민주주의의 위기원인 ········································ 147 06 방어적 민주주의와 관련되는 독일판례 ············· 147 제4절 법치주의의 원리 ·············································· 149 01 개 설 ································································ 149 02 각국의 발달과정과 학자의 주장 ······················· 149 03 법치주의의 구성요소 ········································ 151 04 법치행정의 원칙 ··············································· 151 05 신뢰보호의 원칙 ··············································· 152 06 법치주의의 예외 ··············································· 161 07 진정소급입법과 부진정소급입법 ······················ 162 08 법치주의의 위기원인 ········································ 163 제5절 문화국가의 원리 ·············································· 164 01 개 설 ································································ 164 02 문화국가의 내용 ··············································· 165 03 문화국가에 대한 현대적 고찰 ··························· 165 제6절 복지국가의 원리 ·············································· 168 01 개 설 ································································ 168 02 복지국가원리의 실현수단 ································ 168 03 복지국가의 한계 ··············································· 168 제7절 국제평화주의 ···················································· 169 01 개 념 ································································ 169 02 국제평화주의와 각국의 유형 ···························· 169 03 국제평화주의의 내용 ········································ 170 04 국제조약 ·························································· 172 제5장 대한민국 헌법의 기본제도 제1절 정당제도 ···························································· 182 01 개 설 ································································ 182 02 정당제도의 연혁 ··············································· 184 03 정당의 헌법상 지위에 관한 학설 ······················ 184 04 정당의 법적 형태에 대한 법원과 ······················ 184 헌법재판소의 견해 05 정당의 설립과 조직 ·········································· 185 06 정당의 등록과 취소 ·········································· 189 07 정당의 운영 ······················································ 190 08 정당의 특권과 의무 ·········································· 191 09 정당의 해산 ······················································ 202 제2절 선거제도 ···························································· 210 01 개 설 ································································ 210 02 선거의 종류 ······················································ 210 03 선거의 5대 기본원칙 ········································ 212 04 대표제의 형태 ·················································· 221 05 선거구 ······························································ 225 06 선거공영제 ······················································· 227 07 우리나라의 선거구제 ········································ 227 08 공직선거법 ······················································· 234 제3절 공무원제도 ························································ 268 01 개 설 ································································ 268 02 공무원의 헌법상 지위에 대한 고찰 ··················· 268 03 직업공무원제도의 내용 ···································· 269 04 공무원의 기본권 제한 ······································· 279 (특별권력관계에 있는 자의 기본권 제한) 05 공무원의노동조합설립및운영등에관한법률 ····· 285 06 헌법재판소의 판례 ··········································· 286 제4절 지방자치제도 ···················································· 294 01 지방자치제의 개설 ··········································· 294 02 지방자치제의 유형 ··········································· 295 03 지방자치단체의 종류 ········································ 296 04 지방자치단체의 구성요소 ································ 297 05 지방자치단체의 권한 ········································ 305 06 지방자치단체의 기관 ········································ 310 07 지방자치단체의 사무 ········································ 316 08 지방자치단체에 대한 주민의 통제 ···················· 318 09 지방자치단체에 대한 국가의 지도·감독 ········· 324 제5절 경제제도 ···························································· 329 01 개 설 ································································ 329 02 사회적 시장경제 ··············································· 329 03 경제적 기본질서에 관한 헌법규정의 내용 ········ 330 제6절 군사제도 ···························································· 338 01 국가와 군사제도 ··············································· 338 02 현행 헌법의 군사조항 ······································· 338 03 군사에 관한 헌법원칙 ······································· 338 04 군사제도와 군통수권 ········································ 340 05 군사제도를 위한 기본권 제한 ··························· 341 제3편 기본권 제1장 기본권 총론 제1절 기본권 개설 ······················································· 350 01 기본권의 의의 ·················································· 350 02 기본권의 법적 성격 ·········································· 350 03 인권보장의 역사 ··············································· 352 04 기본권과 제도적 보장 ······································· 355 제2절 기본권의 분류 ·················································· 356 01 주체를 기준으로 한 분류 ·································· 356 02 성질을 기준으로 한 분류 ·································· 357 03 효력을 기준으로 한 분류 ·································· 357 제3절 기본권의 주체 ·················································· 358 01 개 설 ································································ 358 02 국 민 ································································ 358 03 외국인 ······························································ 359 04 법 인 ································································ 364 제4절 기본권의 효력 ·················································· 371 01 기본권의 대국가적 효력 ··································· 371 02 기본권의 대사인적 효력(제3자적 효력) ············ 372 03 우리나라 헌법과 기본권의 대사인적 효력 ········ 373 04 미국의 이론 ······················································ 374 제5절 기본권의 갈등 ·················································· 375 01 기본권의 경쟁 ·················································· 375 02 기본권의 충돌 ·················································· 376 제6절 기본권의 제한 ·················································· 378 01 기본권 제한의 개설 ·········································· 378 02 기본권 제한의 종류 ·········································· 379 03 기본권 제한의 요건 ·········································· 380 04 기본권 제한의 정도에 관한 원칙 ······················ 381 05 기본권 제한의 한계(본질적 내용의 침해금지) ·· 392 제7절 기본권의 침해와 구제 ···································· 393 01 개 설 ································································ 393 02 기본권의 침해와 구제유형 ······························· 394 03 국가인권위원회 ················································ 400 04 행정조사기본법 ················································ 404 제2장 포괄적 기본권 제1절 인간의 존엄과 가치 ········································ 406 01 인간의 존엄과 가치 ·········································· 406 02 인간의 존엄과 가치의 내용 ······························ 408 03 인간의 존엄과 가치의 효력 ······························ 418 04 인간의 존엄과 가치의 제한과 한계 ··················· 418 제2절 행복추구권 ························································ 423 01 개 설 ································································ 423 02 행복추구권의 유래 및 각국의 입법례 ··············· 424 03 행복추구권의 법적 성격 ··································· 424 04 행복추구권의 내용 ··········································· 425 05 행복추구권의 효력·제한 및 한계 ··················· 436 제3절 평등권 ································································· 443 01 개 설 ································································ 443 02 평등권의 법적 성격 ·········································· 445 03 평등권의 주체 ·················································· 446 04 평등권의 내용 ·················································· 446 |
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총론편
제1편 헌법 서론 제1장 헌법의 일반이론 제1절 헌법의 의의 ······················································· 18 01 헌법의 개념 ······················································ 18 02 헌법개념의 이중성 ··········································· 20 03 역사적 발전과정에서의 헌법 ···························· 21 04 존재형식과 내용을 기준으로 한 헌법 ··············· 24 제2절 헌법의 분류 ······················································· 26 01 제정주체에 따른 분류 ······································· 26 02 존재형식에 따른 분류 ······································· 26 03 개정절차의 난이(難易)에 따른 분류 ················· 32 04 헌법의 새로운 분류방법 ··································· 33 제3절 헌법의 특성 ······················································· 34 01 사실적 특성 ······················································ 34 02 규범적 특성 ······················································ 35 03 구조적 특성 ······················································ 36 제4절 헌법의 해석 ······················································· 37 01 헌법해석의 의의 ··············································· 37 02 헌법해석의 원칙 ··············································· 37 03 헌법해석의 종류 ··············································· 38 04 합헌적 법률해석 ··············································· 39 제5절 헌법관 ································································· 41 01 규범주의적 헌법관(법실증주의 헌법관) ··········· 41 02 결단주의적 헌법관 ··········································· 45 03 통합주의적 헌법관 ··········································· 47 제2장 헌법의 제정과 개정 제1절 헌법의 제정 ······················································· 52 01 헌법제정권력의 개설 ········································ 52 02 헌법제정권력이론의 성립과 학자의 이론 ········· 53 03 헌법제정권력의 주체 ········································ 55 04 헌법제정권력의 본질 ········································ 55 05 헌법제정권력의 학설과 한계 ···························· 56 제2절 헌법의 개정 ······················································· 57 01 개 설 ································································ 57 02 헌법개정의 형식과 방법 ··································· 58 03 헌법개정과 비교되는 개념 ······························· 58 04 헌법개정의 한계와 학설 ··································· 60 05 우리나라 헌법의 개정절차 ······························· 63 제2편 대한민국 헌법 제1장 헌법의 제정·개정에 대한 내용 및 북한의 헌법 제1절 임시정부 헌법 ·················································· 72 01 임시정부 헌법의 구성 ······································· 72 02 임시정부 헌법의 특징 ······································· 72 제2절 제1공화국 헌법 ················································ 73 01 제헌헌법(건국헌법) ·········································· 73 02 제1차 개헌(발췌개헌) ······································ 75 03 제2차 개헌(사사오입개헌) ······························· 76 제3절 제2공화국 헌법 ················································ 77 01 제3차 개헌 ······················································· 77 02 제4차 개헌 ······················································· 79 제4절 제3공화국 헌법 ················································ 80 01 제5차 개헌 ······················································· 80 02 제6차 개헌(3선개헌) ······································· 81 제5절 제4공화국 헌법-7차 개헌 ··························· 82 제6절 제5공화국 헌법-8차 개헌 ··························· 84 제7절 제6공화국 헌법-9차 개헌 ··························· 85 제8절 북한헌법 ···························································· 89 01 북한의 제헌헌법 ··············································· 89 02 북한헌법의 개정과정 ········································ 89 03 북한의 제7차 개정헌법 ···································· 89 제2장 헌법의 보장 제1절 헌법보장의 기초이론 ····································· 94 01 개 설 ································································ 94 02 헌법보장과 국가보장의 비교 ···························· 94 03 헌법의 수호자 ·················································· 95 04 헌법보장의 유형 ··············································· 95 제2절 현행 헌법상의 헌법보장제도 ······················· 96 01 평상시의 헌법보장제도 ···································· 96 02 비상시의 헌법보장제도 ···································· 97 제3장 국가론 및 대한민국 국가의 형태 제1절 국가론 ································································· 110 01 국가에 대한 개설 ·············································· 110 02 국가의 기원에 대한 학설 ·································· 110 03 국가의 본질에 대한 학설 ·································· 111 04 국가형태의 분류 ··············································· 112 제2절 우리나라의 구성요소 ····································· 114 01 국 민 ································································ 114 02 영 역 ································································ 129 03 주 권 ································································ 136 제4장 헌법전문과 헌법의 기본원리 제1절 헌법전문 ···························································· 138 01 개 설 ································································ 138 02 헌법전문의 법적인 성격 ··································· 138 03 헌법전문의 법적 성질에 대한 학설 ··················· 140 04 헌법전문의 내용 ··············································· 140 제2절 국민주권주의의 원리 ····································· 141 01 국민주권주의의 개설 ········································ 141 02 주권의 본질 ······················································ 141 03 주권론의 발달과정 ··········································· 141 04 국민의 개념 ······················································ 142 05 국민의 성격에 대한 학설 ·································· 144 06 국민의 범위에 대한 학설 ·································· 144 07 국민주권주의 원리의 제도적 구현 ···················· 144 08 국민의 헌법상 지위 ·········································· 145 제3절 민주주의의 원리 ·············································· 145 01 개 설 ································································ 145 02 민주주의의 유형 ··············································· 146 03 민주주의의 성격 ··············································· 146 04 민주주의의 내용 ··············································· 146 05 민주주의의 위기원인 ········································ 147 06 방어적 민주주의와 관련되는 독일판례 ············· 147 제4절 법치주의의 원리 ·············································· 149 01 개 설 ································································ 149 02 각국의 발달과정과 학자의 주장 ······················· 149 03 법치주의의 구성요소 ········································ 151 04 법치행정의 원칙 ··············································· 151 05 신뢰보호의 원칙 ··············································· 152 06 법치주의의 예외 ··············································· 161 07 진정소급입법과 부진정소급입법 ······················ 162 08 법치주의의 위기원인 ········································ 163 제5절 문화국가의 원리 ·············································· 164 01 개 설 ································································ 164 02 문화국가의 내용 ··············································· 165 03 문화국가에 대한 현대적 고찰 ··························· 165 제6절 복지국가의 원리 ·············································· 168 01 개 설 ································································ 168 02 복지국가원리의 실현수단 ································ 168 03 복지국가의 한계 ··············································· 168 제7절 국제평화주의 ···················································· 169 01 개 념 ································································ 169 02 국제평화주의와 각국의 유형 ···························· 169 03 국제평화주의의 내용 ········································ 170 04 국제조약 ·························································· 172 제5장 대한민국 헌법의 기본제도 제1절 정당제도 ···························································· 182 01 개 설 ································································ 182 02 정당제도의 연혁 ··············································· 184 03 정당의 헌법상 지위에 관한 학설 ······················ 184 04 정당의 법적 형태에 대한 법원과 ······················ 184 헌법재판소의 견해 05 정당의 설립과 조직 ·········································· 185 06 정당의 등록과 취소 ·········································· 189 07 정당의 운영 ······················································ 190 08 정당의 특권과 의무 ·········································· 191 09 정당의 해산 ······················································ 202 제2절 선거제도 ···························································· 210 01 개 설 ································································ 210 02 선거의 종류 ······················································ 210 03 선거의 5대 기본원칙 ········································ 212 04 대표제의 형태 ·················································· 221 05 선거구 ······························································ 225 06 선거공영제 ······················································· 227 07 우리나라의 선거구제 ········································ 227 08 공직선거법 ······················································· 234 제3절 공무원제도 ························································ 268 01 개 설 ································································ 268 02 공무원의 헌법상 지위에 대한 고찰 ··················· 268 03 직업공무원제도의 내용 ···································· 269 04 공무원의 기본권 제한 ······································· 279 (특별권력관계에 있는 자의 기본권 제한) 05 공무원의노동조합설립및운영등에관한법률 ····· 285 06 헌법재판소의 판례 ··········································· 286 제4절 지방자치제도 ···················································· 294 01 지방자치제의 개설 ··········································· 294 02 지방자치제의 유형 ··········································· 295 03 지방자치단체의 종류 ········································ 296 04 지방자치단체의 구성요소 ································ 297 05 지방자치단체의 권한 ········································ 305 06 지방자치단체의 기관 ········································ 310 07 지방자치단체의 사무 ········································ 316 08 지방자치단체에 대한 주민의 통제 ···················· 318 09 지방자치단체에 대한 국가의 지도·감독 ········· 324 제5절 경제제도 ···························································· 329 01 개 설 ································································ 329 02 사회적 시장경제 ··············································· 329 03 경제적 기본질서에 관한 헌법규정의 내용 ········ 330 제6절 군사제도 ···························································· 338 01 국가와 군사제도 ··············································· 338 02 현행 헌법의 군사조항 ······································· 338 03 군사에 관한 헌법원칙 ······································· 338 04 군사제도와 군통수권 ········································ 340 05 군사제도를 위한 기본권 제한 ··························· 341 제3편 기본권 제1장 기본권 총론 제1절 기본권 개설 ······················································· 350 01 기본권의 의의 ·················································· 350 02 기본권의 법적 성격 ·········································· 350 03 인권보장의 역사 ··············································· 352 04 기본권과 제도적 보장 ······································· 355 제2절 기본권의 분류 ·················································· 356 01 주체를 기준으로 한 분류 ·································· 356 02 성질을 기준으로 한 분류 ·································· 357 03 효력을 기준으로 한 분류 ·································· 357 제3절 기본권의 주체 ·················································· 358 01 개 설 ································································ 358 02 국 민 ································································ 358 03 외국인 ······························································ 359 04 법 인 ································································ 364 제4절 기본권의 효력 ·················································· 371 01 기본권의 대국가적 효력 ··································· 371 02 기본권의 대사인적 효력(제3자적 효력) ············ 372 03 우리나라 헌법과 기본권의 대사인적 효력 ········ 373 04 미국의 이론 ······················································ 374 제5절 기본권의 갈등 ·················································· 375 01 기본권의 경쟁 ·················································· 375 02 기본권의 충돌 ·················································· 376 제6절 기본권의 제한 ·················································· 378 01 기본권 제한의 개설 ·········································· 378 02 기본권 제한의 종류 ·········································· 379 03 기본권 제한의 요건 ·········································· 380 04 기본권 제한의 정도에 관한 원칙 ······················ 381 05 기본권 제한의 한계(본질적 내용의 침해금지) ·· 392 제7절 기본권의 침해와 구제 ···································· 393 01 개 설 ································································ 393 02 기본권의 침해와 구제유형 ······························· 394 03 국가인권위원회 ················································ 400 04 행정조사기본법 ················································ 404 제2장 포괄적 기본권 제1절 인간의 존엄과 가치 ········································ 406 01 인간의 존엄과 가치 ·········································· 406 02 인간의 존엄과 가치의 내용 ······························ 408 03 인간의 존엄과 가치의 효력 ······························ 418 04 인간의 존엄과 가치의 제한과 한계 ··················· 418 제2절 행복추구권 ························································ 423 01 개 설 ································································ 423 02 행복추구권의 유래 및 각국의 입법례 ··············· 424 03 행복추구권의 법적 성격 ··································· 424 04 행복추구권의 내용 ··········································· 425 05 행복추구권의 효력·제한 및 한계 ··················· 436 제3절 평등권 ································································· 443 01 개 설 ································································ 443 02 평등권의 법적 성격 ·········································· 445 03 평등권의 주체 ·················································· 446 04 평등권의 내용 ·················································· 446 |
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총론편
제1편 헌법 서론 제1장 헌법의 일반이론 제1절 헌법의 의의 ······················································· 18 01 헌법의 개념 ······················································ 18 02 헌법개념의 이중성 ··········································· 20 03 역사적 발전과정에서의 헌법 ···························· 21 04 존재형식과 내용을 기준으로 한 헌법 ··············· 24 제2절 헌법의 분류 ······················································· 26 01 제정주체에 따른 분류 ······································· 26 02 존재형식에 따른 분류 ······································· 26 03 개정절차의 난이(難易)에 따른 분류 ················· 32 04 헌법의 새로운 분류방법 ··································· 33 제3절 헌법의 특성 ······················································· 34 01 사실적 특성 ······················································ 34 02 규범적 특성 ······················································ 35 03 구조적 특성 ······················································ 36 제4절 헌법의 해석 ······················································· 37 01 헌법해석의 의의 ··············································· 37 02 헌법해석의 원칙 ··············································· 37 03 헌법해석의 종류 ··············································· 38 04 합헌적 법률해석 ··············································· 39 제5절 헌법관 ································································· 41 01 규범주의적 헌법관(법실증주의 헌법관) ··········· 41 02 결단주의적 헌법관 ··········································· 45 03 통합주의적 헌법관 ··········································· 47 제2장 헌법의 제정과 개정 제1절 헌법의 제정 ······················································· 52 01 헌법제정권력의 개설 ········································ 52 02 헌법제정권력이론의 성립과 학자의 이론 ········· 53 03 헌법제정권력의 주체 ········································ 55 04 헌법제정권력의 본질 ········································ 55 05 헌법제정권력의 학설과 한계 ···························· 56 제2절 헌법의 개정 ······················································· 57 01 개 설 ································································ 57 02 헌법개정의 형식과 방법 ··································· 58 03 헌법개정과 비교되는 개념 ······························· 58 04 헌법개정의 한계와 학설 ··································· 60 05 우리나라 헌법의 개정절차 ······························· 63 제2편 대한민국 헌법 제1장 헌법의 제정·개정에 대한 내용 및 북한의 헌법 제1절 임시정부 헌법 ·················································· 72 01 임시정부 헌법의 구성 ······································· 72 02 임시정부 헌법의 특징 ······································· 72 제2절 제1공화국 헌법 ················································ 73 01 제헌헌법(건국헌법) ·········································· 73 02 제1차 개헌(발췌개헌) ······································ 75 03 제2차 개헌(사사오입개헌) ······························· 76 제3절 제2공화국 헌법 ················································ 77 01 제3차 개헌 ······················································· 77 02 제4차 개헌 ······················································· 79 제4절 제3공화국 헌법 ················································ 80 01 제5차 개헌 ······················································· 80 02 제6차 개헌(3선개헌) ······································· 81 제5절 제4공화국 헌법-7차 개헌 ··························· 82 제6절 제5공화국 헌법-8차 개헌 ··························· 84 제7절 제6공화국 헌법-9차 개헌 ··························· 85 제8절 북한헌법 ···························································· 89 01 북한의 제헌헌법 ··············································· 89 02 북한헌법의 개정과정 ········································ 89 03 북한의 제7차 개정헌법 ···································· 89 제2장 헌법의 보장 제1절 헌법보장의 기초이론 ····································· 94 01 개 설 ································································ 94 02 헌법보장과 국가보장의 비교 ···························· 94 03 헌법의 수호자 ·················································· 95 04 헌법보장의 유형 ··············································· 95 제2절 현행 헌법상의 헌법보장제도 ······················· 96 01 평상시의 헌법보장제도 ···································· 96 02 비상시의 헌법보장제도 ···································· 97 제3장 국가론 및 대한민국 국가의 형태 제1절 국가론 ································································· 110 01 국가에 대한 개설 ·············································· 110 02 국가의 기원에 대한 학설 ·································· 110 03 국가의 본질에 대한 학설 ·································· 111 04 국가형태의 분류 ··············································· 112 제2절 우리나라의 구성요소 ····································· 114 01 국 민 ································································ 114 02 영 역 ································································ 129 03 주 권 ································································ 136 제4장 헌법전문과 헌법의 기본원리 제1절 헌법전문 ···························································· 138 01 개 설 ································································ 138 02 헌법전문의 법적인 성격 ··································· 138 03 헌법전문의 법적 성질에 대한 학설 ··················· 140 04 헌법전문의 내용 ··············································· 140 제2절 국민주권주의의 원리 ····································· 141 01 국민주권주의의 개설 ········································ 141 02 주권의 본질 ······················································ 141 03 주권론의 발달과정 ··········································· 141 04 국민의 개념 ······················································ 142 05 국민의 성격에 대한 학설 ·································· 144 06 국민의 범위에 대한 학설 ·································· 144 07 국민주권주의 원리의 제도적 구현 ···················· 144 08 국민의 헌법상 지위 ·········································· 145 제3절 민주주의의 원리 ·············································· 145 01 개 설 ································································ 145 02 민주주의의 유형 ··············································· 146 03 민주주의의 성격 ··············································· 146 04 민주주의의 내용 ··············································· 146 05 민주주의의 위기원인 ········································ 147 06 방어적 민주주의와 관련되는 독일판례 ············· 147 제4절 법치주의의 원리 ·············································· 149 01 개 설 ································································ 149 02 각국의 발달과정과 학자의 주장 ······················· 149 03 법치주의의 구성요소 ········································ 151 04 법치행정의 원칙 ··············································· 151 05 신뢰보호의 원칙 ··············································· 152 06 법치주의의 예외 ··············································· 161 07 진정소급입법과 부진정소급입법 ······················ 162 08 법치주의의 위기원인 ········································ 163 제5절 문화국가의 원리 ·············································· 164 01 개 설 ································································ 164 02 문화국가의 내용 ··············································· 165 03 문화국가에 대한 현대적 고찰 ··························· 165 제6절 복지국가의 원리 ·············································· 168 01 개 설 ································································ 168 02 복지국가원리의 실현수단 ································ 168 03 복지국가의 한계 ··············································· 168 제7절 국제평화주의 ···················································· 169 01 개 념 ································································ 169 02 국제평화주의와 각국의 유형 ···························· 169 03 국제평화주의의 내용 ········································ 170 04 국제조약 ·························································· 172 제5장 대한민국 헌법의 기본제도 제1절 정당제도 ···························································· 182 01 개 설 ································································ 182 02 정당제도의 연혁 ··············································· 184 03 정당의 헌법상 지위에 관한 학설 ······················ 184 04 정당의 법적 형태에 대한 법원과 ······················ 184 헌법재판소의 견해 05 정당의 설립과 조직 ·········································· 185 06 정당의 등록과 취소 ·········································· 189 07 정당의 운영 ······················································ 190 08 정당의 특권과 의무 ·········································· 191 09 정당의 해산 ······················································ 202 제2절 선거제도 ···························································· 210 01 개 설 ································································ 210 02 선거의 종류 ······················································ 210 03 선거의 5대 기본원칙 ········································ 212 04 대표제의 형태 ·················································· 221 05 선거구 ······························································ 225 06 선거공영제 ······················································· 227 07 우리나라의 선거구제 ········································ 227 08 공직선거법 ······················································· 234 제3절 공무원제도 ························································ 268 01 개 설 ································································ 268 02 공무원의 헌법상 지위에 대한 고찰 ··················· 268 03 직업공무원제도의 내용 ···································· 269 04 공무원의 기본권 제한 ······································· 279 (특별권력관계에 있는 자의 기본권 제한) 05 공무원의노동조합설립및운영등에관한법률 ····· 285 06 헌법재판소의 판례 ··········································· 286 제4절 지방자치제도 ···················································· 294 01 지방자치제의 개설 ··········································· 294 02 지방자치제의 유형 ··········································· 295 03 지방자치단체의 종류 ········································ 296 04 지방자치단체의 구성요소 ································ 297 05 지방자치단체의 권한 ········································ 305 06 지방자치단체의 기관 ········································ 310 07 지방자치단체의 사무 ········································ 316 08 지방자치단체에 대한 주민의 통제 ···················· 318 09 지방자치단체에 대한 국가의 지도·감독 ········· 324 제5절 경제제도 ···························································· 329 01 개 설 ································································ 329 02 사회적 시장경제 ··············································· 329 03 경제적 기본질서에 관한 헌법규정의 내용 ········ 330 제6절 군사제도 ···························································· 338 01 국가와 군사제도 ··············································· 338 02 현행 헌법의 군사조항 ······································· 338 03 군사에 관한 헌법원칙 ······································· 338 04 군사제도와 군통수권 ········································ 340 05 군사제도를 위한 기본권 제한 ··························· 341 제3편 기본권 제1장 기본권 총론 제1절 기본권 개설 ······················································· 350 01 기본권의 의의 ·················································· 350 02 기본권의 법적 성격 ·········································· 350 03 인권보장의 역사 ··············································· 352 04 기본권과 제도적 보장 ······································· 355 제2절 기본권의 분류 ·················································· 356 01 주체를 기준으로 한 분류 ·································· 356 02 성질을 기준으로 한 분류 ·································· 357 03 효력을 기준으로 한 분류 ·································· 357 제3절 기본권의 주체 ·················································· 358 01 개 설 ································································ 358 02 국 민 ································································ 358 03 외국인 ······························································ 359 04 법 인 ································································ 364 제4절 기본권의 효력 ·················································· 371 01 기본권의 대국가적 효력 ··································· 371 02 기본권의 대사인적 효력(제3자적 효력) ············ 372 03 우리나라 헌법과 기본권의 대사인적 효력 ········ 373 04 미국의 이론 ······················································ 374 제5절 기본권의 갈등 ·················································· 375 01 기본권의 경쟁 ·················································· 375 02 기본권의 충돌 ·················································· 376 제6절 기본권의 제한 ·················································· 378 01 기본권 제한의 개설 ·········································· 378 02 기본권 제한의 종류 ·········································· 379 03 기본권 제한의 요건 ·········································· 380 04 기본권 제한의 정도에 관한 원칙 ······················ 381 05 기본권 제한의 한계(본질적 내용의 침해금지) ·· 392 제7절 기본권의 침해와 구제 ···································· 393 01 개 설 ································································ 393 02 기본권의 침해와 구제유형 ······························· 394 03 국가인권위원회 ················································ 400 04 행정조사기본법 ················································ 404 제2장 포괄적 기본권 제1절 인간의 존엄과 가치 ········································ 406 01 인간의 존엄과 가치 ·········································· 406 02 인간의 존엄과 가치의 내용 ······························ 408 03 인간의 존엄과 가치의 효력 ······························ 418 04 인간의 존엄과 가치의 제한과 한계 ··················· 418 제2절 행복추구권 ························································ 423 01 개 설 ································································ 423 02 행복추구권의 유래 및 각국의 입법례 ··············· 424 03 행복추구권의 법적 성격 ··································· 424 04 행복추구권의 내용 ··········································· 425 05 행복추구권의 효력·제한 및 한계 ··················· 436 제3절 평등권 ································································· 443 01 개 설 ································································ 443 02 평등권의 법적 성격 ·········································· 445 03 평등권의 주체 ·················································· 446 04 평등권의 내용 ·················································· 446 |
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그 동안 헌법을 전공한 후 대학강단과 수험현장에서 강의를 시작하고 10여년이 넘게 수험계에서 가장 많은 합격생과 최고의 전통이라는 금자탑을 이룩하였으며, 수험생 제위 여러분의 성원에 힘입어 2019년 시험대비 명품헌법을 출간하는 바이다.
수험생 여러분에게 쉽게 접근하고 단기간에 헌법을 정복할 수 있는 방법을 불철주야 연구하여 미력하나마 수험생 여러분의 합격에 기여하고 싶은 마음이 간절하다. 본서는 7급 시험, 행정고시, 법원행시, 법원·등기서기보, 국회사무처, 각종 공무원 승진시험, 경찰 승진시험, 비상계획관, 법무사, 소방간부직을 대비하여 쉽게 접근할 수 있도록 핵심내용을 도표로 처리하고 정리하였다. 한편으로는 양적으로 방대하고 이론적으로 난해한 헌법이론을 일목요연하게 체계적으로 집대성하여 효율적으로 헌법을 완전정복할 수 있도록 하였다. 그리고 헌법재판소의 최신판례와 이론을 대폭 반영하되 공부의 양을 줄여줄 수 있도록 효과적으로 정리하였다. 본 교재를 통하여 7급 시험, 행정고시, 법원행시, 법원·등기서기보, 국회사무처, 각종 공무원 승진시험, 경찰 승진시험, 비상계획관, 법무사, 소방간부직을 대비하면 고득점을 할 수 있을 것이다. 필자는 본서에 열정을 다하여 문구 하나하나에도 시험에 직접 연결될 수 있도록 심층적으로 정리하면서 본서를 집필하였다. 2019년 명품헌법은 최근 헌법재판소 판례 및 헌법 관련 부속법률 개정내용, 최근 10여년간 실시된 7급 국가직·지방직·법원직·국회사무처·소방간부·비상계획관·각종 고시·변호사시험·승진시험에 출제된 내용들을 일목요연하게 정리하여 반영하였다. 특히 최근 헌법재판소 판례와 개정법률은 출제가 예상되는 내용을 전부 반영하면서도 수험생 여러분의 부담을 덜기 위하여 많은 노력을 하였다. 헌법완전정복을 위한 명품헌법은 다음의 원칙에 따라 집필하였다. 첫 째, 방대한 헌법재판소의 판례는 판결요지를 중심으로 체계화하여 출제되는 문맥으로 간결화 하였다. 둘 째, 방대한 헌법이론 및 판례내용을 명쾌하게 요약?정리할 수 있도록 도표를 통해 테마별 총정리를 하였다. 핵심내용을 요약한 후에 이론을 접근하면 보다 쉽고 빠르게 이해할 수 있으며, 단기간에 헌법완전정복이 가능하다는 것은 이미 수 많은 합격생들이 검증해 주었다. 셋 째, 각종 시험에 출제되었던 이론과 판례에는 긴장감을 갖고 중점적으로 공부할 수 있도록 표기를 하였다. 수험공부의 시작과 끝은 기출문제에 대한 확실한 정리에 있다. 기출문제에 대한 철저한 분석은 수험공부의 확실한 길잡이가 되어주며, 출제경향도 예상할 수 있게 해준다. 넷 째, 7급 기출문제와 법원직, 각종 승진, 국회사무처 8급, 소방간부직 지문들을 수록하여 실제시험문제에 친숙하게 접근할 수 있도록 하였다. 또한 난해한 고시문제의 지문들도 수록하여 합격의 당락을 결정지을 한·두 문제마저 정복할 수 있게 대비하였다. 다섯째, 중요한 부분은 고딕체 글씨체와 함께 시각적으로 한눈에 알아볼 수 있도록 색처리 및 밑줄처리를 하였으며, 색·밑줄처리한 내용을 중점적으로 봐도 고득점이 가능하다. 여섯째, 시험에 빈번히 출제되는 장(또는 절)별 내용이 끝나는 곳에 ‘원 포인트 핵심요약’을 수록하여 한눈에 정리할 수 있도록 구성하였다. 본 교재가 수험생 여러분의 합격의 동반자가 될 것임을 확신하는 바이다. 헌법에 관해 궁금한 점이나, 합격을 위한 효율적인 학습방법에 대한 상담, 그 밖의 수험고민 등은 “www.chaehantae.com” 게시판이나 이메일 “cht016@hanmail.net”으로 질문하면 직접 신속하고 성실하게 답변해 드릴 것을 약속한다. 농부가 밭에 씨앗을 뿌리는 심정으로 수험공부에 매진하길 바라는 바이다. |