제1편 기본권

제1장 기본권 총론

제1절 기본권 일반 ···············································································································4
Ⅰ. 기본권의 의미 / 4
Ⅱ. 기본권의 분류 / 4
Ⅲ. 기본권 보장의 역사 / 6

제2절 기본권의 성격 ············································································································7
Ⅰ. 자연권성 및 실정권성, 주관적 공권 / 7
Ⅱ. 기본권의 이중적 성격 / 7
Ⅲ. 헌법관에 따른 기본권의 성격 / 7

제3절 기본권과 제도보장 ·····································································································8
Ⅰ. 제도보장의 의의 / 8
Ⅱ. 현행 헌법상 제도보장 / 8

제4절 기본권의 주체 ···········································································································9
Ⅰ. 의 의 / 9
Ⅱ. 구체적 검토 / 9

제5절 기본권의 효력 ··········································································································16
Ⅰ. 의 의 / 16
Ⅱ. 기본권의 대국가적 효력 / 16
Ⅲ. 기본권의 대사인적 효력 / 17

제6절 기본권의 경합과 충돌 ·······························································································18
Ⅰ. 기본권의 경합 / 18
Ⅱ. 기본권의 충돌 / 20

제7절 기본권의 제한 및 한계 ······························································································23
Ⅰ. 의 의 / 23
Ⅱ. 기본권의 내재적 한계 / 23
Ⅲ. 기본권 제한의 유형 / 23
Ⅳ. 기본권 제한의 일반원칙 / 25

제8절 기본권의 침해와 구제 ·······························································································57
Ⅰ. 입법부에 의한 침해와 구제 / 57
Ⅱ. 행정부에 의한 침해와 구제 / 61
Ⅲ. 사법부에 의한 침해와 구제 / 61
Ⅳ. 사인에 의한 침해와 구제 / 61
Ⅴ. 국가인권위원회를 통한 구제 / 61

제9절 기본권의 보호의무 ····································································································64
Ⅰ. 의 의 / 64
Ⅱ. 헌법적 근거 / 65
Ⅲ. 보호의무 이행의 심사기준 - 과소보호금지원칙 / 65

제2장 인간의 존엄과 가치⋅행복추구권

제1절 인간의 존엄과 가치 ··································································································71
Ⅰ. 의의 및 성격 / 71
Ⅱ. 주 체 / 71
Ⅲ. 일반적 인격권 / 72

제2절 행복추구권 ······································································································78
Ⅰ. 의의 및 법적 성격 / 78
Ⅱ. 내 용 / 79

제3장 평등권

Ⅰ. 의 의 / 96
Ⅱ. 내용 / 96
Ⅲ. 적극적 평등실현조치 / 106
Ⅳ. 간접차별 / 106
Ⅴ. 평등원칙에 관한 판례 / 106

제4장 자유권적 기본권

제1절 인신에 관한 자유 ····································································································124
┃제1항┃ 생명권 / 125
Ⅰ. 의의 및 내용 / 125
Ⅱ. 제한 및 한계 / 125

┃제2항┃ 신체를 훼손당하지 않을 권리 / 128

┃제3항┃ 신체의 자유 / 128
Ⅰ. 의 의 / 128
Ⅱ. 신체의 자유의 실체적 보장 / 132
Ⅲ. 신체의 자유의 절차적 보장 / 148

제2절 사생활영역의 자유 ··································································································174
┃제1항┃ 사생활의 비밀과 자유 / 174
Ⅰ. 의 의 / 174
Ⅱ. 표현의 자유와의 관계(기본권충돌) / 177

┃제2항┃ 주거의 자유 / 189
Ⅰ. 의 의 / 189
Ⅱ. 내 용 / 190

┃제3항┃ 거주⋅이전의 자유 / 191
Ⅰ. 의 의 / 191
Ⅱ. 주 체 / 192
Ⅲ. 내 용 / 192

┃제4항┃ 통신의 자유 / 195
Ⅰ. 의 의 / 195
Ⅱ. 내 용 / 195
Ⅲ. 효 력 / 196
Ⅳ. 제한 및 한계 / 197

제3절 정신생활영역의 자유 ······························································································202
┃제1항┃ 양심의 자유 / 202
Ⅰ. 의 의 / 202
Ⅱ. ‘양심’의 의의 / 202
Ⅲ. 주 체 / 203
Ⅳ. 내 용 / 204
Ⅴ. 제한 및 한계 / 204

┃제2항┃ 종교의 자유 / 209
Ⅰ. 의 의 / 209
Ⅱ. 주 체 / 209
Ⅲ. 내 용 / 209
Ⅳ. 제한 및 한계 / 210
Ⅴ. 국교부인과 정교분리의 원칙 / 213

┃제3항┃ 언론⋅출판의 자유 / 215
Ⅰ. 의 의 / 215
Ⅱ. 의사표현 및 전파의 자유(표현의 자유)의 내용 / 215
Ⅲ. 제 한 / 220
Ⅳ. 한 계 / 224
Ⅴ. 알 권리, 액세스권, 언론기관의 자유 / 227

┃제4항┃ 집회⋅결사의 자유 / 234
Ⅰ. 집회의 자유 / 234
Ⅱ. 결사의 자유 / 246

┃제5항┃ 학문과 예술의 자유 / 250
Ⅰ. 학문의 자유 / 250
Ⅱ. 예술의 자유 / 252

제4절 경제생활영역의 자유 ······························································································254
┃제1항┃ 재산권 / 254
Ⅰ. 의 의 / 254
Ⅱ. 재산권보장의 내용 / 260
Ⅲ. 재산권의 제한 / 261
Ⅳ. 재산권의 공용침해 / 265
Ⅴ. 재산권에 관한 헌법재판소 결정례 / 267
Ⅵ. 특별부담금의 헌법적 한계 / 276

┃제2항┃ 직업의 자유 / 280
Ⅰ. 의 의 / 280
Ⅱ. 주 체 / 282
Ⅲ. 내 용 / 283
Ⅳ. 제한 및 한계 / 284

┃제3항┃ 소비자의 권리 / 304

제5장 정치적 기본권

제1절 참정권 ··················································································································306
Ⅰ. 의 의 / 306
Ⅱ. 법적 성격 / 306
Ⅲ. 주 체 / 306
Ⅳ. 내 용 / 306

제6장 청구권적 기본권

제1절 청구권적 기본권 일반이론 ··························································································319
제2절 청원권 ·····················································································································319
Ⅰ. 의 의 / 319
Ⅱ. 내 용 / 319
Ⅲ. 청원법 이외의 관련 법률 / 323

제3절 기재판청구권 ············································································································325
Ⅰ. 의 의 / 325
Ⅱ. 법적 성격 / 325
Ⅲ. 주 체 / 326
Ⅳ. 내 용 / 326
Ⅴ. 재판청구권의 제한 / 341
Ⅵ. 형사피해자의 재판절차진술권 / 345

제4절 국가배상청구권 ········································································································································347
Ⅰ. 의 의 / 347
Ⅱ. 법적 성격 / 347
Ⅲ. 주 체 / 347
Ⅳ. 내 용 / 348
Ⅴ. 국가배상책임의 성질 / 350
Ⅵ. 배상책임자 / 351
Ⅶ. 국가배상청구의 절차 / 352
Ⅷ. 국가배상청구권의 제한 / 353

제5절 형사보상청구권 ·······································································································356
Ⅰ. 의 의 / 356
Ⅱ. 주 체 / 357
Ⅲ. 내 용 / 357

제6절 범죄피해자구조청구권 ·····························································································362
Ⅰ. 의 의 / 362
Ⅱ. 법적 성격 / 363
Ⅲ. 주 체 / 363
Ⅳ. 내 용 / 363

제7장 사회적 기본권

제1절 사회적 기본권의 일반론 ························································································367
Ⅰ. 의 의 / 367
Ⅱ. 법적 성격 / 367

제2절 인간다운 생활을 할 권리 ······················································································368
Ⅰ. 의 의 / 368
Ⅱ. 주 체 / 369
Ⅲ. 내 용 / 369
Ⅳ. 제한 및 한계 / 372

제3절 교육을 받을 권리 ·································································································374
Ⅰ. 의 의 / 374
Ⅱ. 성 격 / 374
Ⅲ. 주 체 / 375
Ⅳ. 교육을 받을 권리의 내용 / 375
Ⅴ. 교육제도의 보장 / 382

제4절 근로의 권리 ············································································································388
Ⅰ. 의 의 / 388
Ⅱ. 성 격 / 389
Ⅲ. 주 체 / 389
Ⅳ. 내 용 / 389

제5절 근로3권 ··················································································································394
Ⅰ. 의 의 / 394
Ⅱ. 법적 성격 / 395
Ⅲ. 주 체 / 395
Ⅳ. 근로3권의 내용 / 396
Ⅴ. 근로3권의 제한 및 한계 / 402

제6절 환경권 ···················································································································406
Ⅰ. 의 의 / 406
Ⅱ. 성 격 / 407
Ⅲ. 환경권의 보호대상 / 407

제7절 혼인과 가족생활의 보장 ···························································································409
Ⅰ. 의 의 / 409
Ⅱ. 성 격 / 409
Ⅲ. 내 용 / 409

제8절 모성의 보호 ·········································································································································418
Ⅰ. 의 의 / 418
Ⅱ. 내 용 / 418

제9절 보건권 ·····················································································································419
Ⅰ. 의 의 / 419
Ⅱ. 내 용 / 419

제8장 국민의 기본적 의무
Ⅰ. 의 의 / 421
Ⅱ. 기본적 의무의 내용 / 421

제2편 헌법총권

제1장 헌법과 헌법학

제1절 헌법일반 ·················································································································428
Ⅰ. 헌법의 개념 / 428
Ⅱ. 헌법관 / 432
Ⅲ. 헌법의 특성 / 433

제2절 헌법의 해석 ············································································································434
Ⅰ. 헌법의 해석 / 434
Ⅱ. 합헌적 법률해석 / 435

제3절 헌법의 제정 ············································································································437
Ⅰ. 헌법제정의 의의 / 437
Ⅱ. 헌법제정권력 / 438

제4절 헌법의 개정 ············································································································438
Ⅰ. 헌법개정의 의의 및 필요성 / 438
Ⅱ. 헌법개정의 한계 / 438
Ⅲ. 한국헌법의 개정절차 / 439

제5절 헌법의 변천 ········································································································································441
Ⅰ. 헌법변천의 의의 / 441
Ⅱ. 헌법개정과의 차이 / 442
Ⅲ. 헌법변천의 요건 / 442
Ⅳ. 헌법변천의 한계 / 442
Ⅴ. 구체적 사례 / 442

제6절 헌법의 수호 ············································································································442
Ⅰ. 헌법의 수호(보호)의 의의 / 442
Ⅱ. 헌법의 수호(보호)의 종류 / 443
Ⅲ. 저항권 / 443
Ⅳ. 방어적 민주주의 / 445
Ⅴ. 국가긴급권 / 446

제2장 대한민국 헌법총설

제1절 대한민국 헌정사 ·····································································································455

제2절 대한민국의 국가형태 ·······························································································470
Ⅰ. 국가형태의 의의 / 470
Ⅱ. 국가형태에 대한 현대적 분류 / 470
Ⅲ. 대한민국의 국가형태 / 470

제3절 대한민국의 구성요소 ·······························································································471
Ⅰ. 주 권 / 471
Ⅱ. 국 민 / 471
Ⅲ. 영 역 / 482

제4절 한국헌법의 기본원리 ·······························································································486
┃제1항┃ 헌법전문 / 486
Ⅰ. 헌법 전문의 의의 / 486
Ⅱ. 헌법 전문의 규범적 효력 / 486

┃제2항┃ 국민주권 원리 / 488
Ⅰ. 국민주권 원리의 개념 / 488
Ⅱ. 현행 헌법상 국민주권 원리의 구현 / 490

┃제3항┃ 민주주의 원리 / 491
Ⅰ. 민주주의의 개념 / 491
Ⅱ. 민주주의의 내용 / 492
Ⅲ. 오늘날 민주주의의 형태 / 492
Ⅳ. 현행 헌법상 민주주의 원리의 구현 / 493

┃제4항┃ 법치국가 원리 / 493
Ⅰ. 법치국가 원리의 의의 / 493
Ⅱ. 법치국가 원리의 내용 / 494
Ⅲ. 현행 헌법상 법치주의 원리의 구현 / 494

┃제5항┃ 사회국가원리 / 505
Ⅰ. 사회국가의 의의 / 505
Ⅱ. 사회국가원리의 수용 / 505
Ⅲ. 사회국가원리의 한계 / 505
Ⅳ. 현행 헌법상 사회국가원리의 구현 / 506

┃제6항┃ 문화국가원리 / 511
Ⅰ. 문화국가원리의 의미 / 511
Ⅱ. 문화국가원리의 내용 / 511
Ⅲ. 현행 헌법상 문화국가원리의 구현 / 511

┃제7항┃ 국제평화주의 / 513
Ⅰ. 국제평화주의의 의의 / 513
Ⅱ. 침략전쟁의 부인 / 513
Ⅲ. 평화통일의 지향 / 513
Ⅳ. 외국인의 법적지위 보장 / 514
Ⅴ. 국제법존중주의 / 514

제5절 한국헌법의 기본제도 ·······························································································520
┃제1항┃ 정당제도 / 520
Ⅰ. 헌법상 정당제도 및 정당의 기능 / 520
Ⅱ. 정당의 개념 / 520
Ⅲ. 정당의 지위 / 521
Ⅳ. 정당의 법적 성격 / 521
Ⅴ. 정당의 자유 / 522
Ⅵ. 정당의 설립 / 523
Ⅶ. 정당의 활동 / 525
Ⅷ. 당내 민주주의(당내 민주화) / 526
Ⅸ. 정당의 소멸 / 528
Ⅹ. 정당과 정치자금 / 534

┃제2항┃ 선거제도 / 540
Ⅰ. 선거권 / 540
Ⅱ. 선거제도의 기본원칙 / 545
Ⅲ. 대표제와 선거구제 / 554
Ⅳ. 현행 헌법상 선거제도 / 557

┃제3항┃ 공무원제도 / 578
Ⅰ. 공무원의 의의 / 578
Ⅱ. 국민 전체에 대한 봉사자로서의 공무원 / 579
Ⅲ. 직업공무원제도 / 579

┃제4항┃ 지방자치제도 / 586
Ⅰ. 지방자치제도 개설 / 586
Ⅱ. 현행 헌법상 지방자치제도 / 590