2021 김원욱 경찰 헌법 입문서

제1편 헌법총론
제1장 ❙헌법과 헌법학 / 4
제1절 헌법의 의의 ······································································································································· 4
1. 헌법은 무엇이며, 어떤 내용이 담겨있나요? ·················································································· 4
2. 헌법과 법률을 다른 법인가요? ······································································································· 4
3. 서로 다른 법률이 충돌하면 누가 이기나요? ··················································································· 5
4. 헌법재판소는 어떤 일을 하나요? ··································································································· 5
5. 헌법을 개정할 때는 반드시 국민투표를 거쳐야만 하나요? ····························································· 6
제2절 헌법의 개정 ······································································································································ 8
1. 헌법은 어떤 절차를 통해서 개정되나요? ························································································ 8
2. 절차만 거치면 모든 헌법규정을 개정할 수 있나요? ········································································ 8
제3절 헌법의 수호 ······································································································································ 10
1. 군사 독재정권에 대항하여 국민이 폭력으로 저항할 수 있나요? ····················································· 10
제2장 ❙대한민국 헌법총설 / 12
제1절 대한민국의 국가형태와 구성요소 ····································································································· 12
1. 어떤 나라가 사람 살기에 좋은 나라인가요? ··················································································· 12
2. 무인도를 사서 나 홀로 국가를 설립할 수 있나요? ·········································································· 12
제2절 헌법의 기본원리 ······························································································································· 13
제1항 국민주권주의와 민주주의 ·················································································································· 13
1. 우리나라의 주인은 누구인가요? ···································································································· 13
2. 북한 이름이 조선민주주의 인민공화국인데 이것도 민주주의인가요? ·············································13
3. 독일 나치당이 국민의 지지로 세계대전을 일으킨 것도 민주주의인가요? ········································13
4. 방어적 민주주의의 예로는 무엇이 있나요? ···················································································· 14
제2항 법치주의 ··········································································································································· 15
1. 대통령과 국회의원들은 우리를 위해서 정치를 하겠지요? ······························································ 15
2. 인간이 아닌 법에 의한 통치는 언제나 옳은 건가요? ······································································· 15
3. 법치주의는 헌법에 규정되어 있나요? ···························································································· 15
제3항 권력분립원리 ···································································································································· 18
1. 대통령제 국가에서는 대통령이 왕인가요? ····················································································· 18
2. 국가권력을 분리하면 서로 단절되니까 소통이 안되겠네요? ··························································· 18
3. 국가권력이 국민권리를 침해하면 이건 누가 통제하나요? ······························································ 18
제4항 사회국가원리 ···································································································································· 20
1. 사회주의는 공산주의와 같은 개념인가요? ····················································································· 20
2. 우리나라는 자본주의체제니까 국가가 경제를 통제할 수 없나요? ··················································· 20
제5항 문화국가원리 ···································································································································· 22
1. 또 다른 BTS를 만들려면 국가가 적극 개입하는 것이 나을까요? ····················································· 22
2. 교양프로와 개그프로 중 어떤 것이 문화로 보호받나요? ································································· 23
3. 과거부터 내려온 악습도 전통문화로 헌법상 보호를 받나요? ·························································· 24
제6항 국제평화주의 ···································································································································· 25
1. 독도분쟁 해결을 위해 일본과 전쟁을 할 수 있을까요? ··································································· 25
2. 외국과의 조약은 우리나라 법률보다 상위법인가요? ······································································ 25
3. 국가 간의 조약은 대통령 마음대로 체결하나요? ············································································ 27
제3절 헌법전문 ··········································································································································· 29
1. 헌법전문은 헌법에 꼭 필요한 건가요? ··························································································· 29
2. 헌법전문의 3.1운동 정신은 기본권인가요, 의무인가요? ································································ 29
제4절 대한민국헌법 총강 ··························································································································· 31
제1항 주권 ·····························································································································31
제2항 국민 ······························································································································31
1. 한국인인지는 누가 결정해 주나요? ································································································ 31
2. 재외국민도 우리나라 대통령 선거에 참여할 수 있나요? ································································· 31
3. 출생으로 한국국적을 가지려면 부모님 모두 한국인이어야만 하나요? ············································32
4. 코피노는 한국 사람인가요, 필리핀 사람인가요? ············································································ 34
5. 필리핀 사람이 한국국적을 취득하려면 어떻게 해야 하나요? ·························································· 35
6. 필리핀 사람이 한국으로 귀화하면 그 자녀들도 한국국적을 취득하나요? ········································37
7. 연예인이 병역을 기피하려고 한국국적을 포기한 후 다시 취득할 수 있나요? ··································37
8. 코피노가 한국국적을 취득하면 필리핀국적도 함께 가질 수 있나요? ··············································· 38
9. 한국인이 이중국적의 신분을 얻어도 한국국적이 유지되나요? ·······················································39
제3항 영토 ····················································································40
1. 북한은 한국인가요, 외국인가요? ··································································································· 40
2. 1991년 북한이 유엔에 가입하면서 국가로 인정받은 건가요? ························································· 40
3. 북한주민들은 한국 사람인가요? 외국 사람인가요? ········································································ 40

제2편 기본권론
제1장 ❙기본권 총론 / 44
제1절 기본권의 의의 ··································································································································· 44
1. 인권과 기본권은 같은 뜻인가요? ··································································································· 44
2. 헌법상 기본권에는 어떤 것들이 있나요? ························································································ 44
제2절 기본권의 법적 성격 ·························································································································· 45
1. 혼인의 자유는 권리인가요, 제도인가요? ························································································ 45
2. 기본권은 이중적 성격을 가지는 건가요? ························································································ 45
제3절 기본권의 주체 ··································································································································· 47
1. 태아나 미성년자도 기본권의 주체가 될 수 있나요? ········································································ 47
2. 외국인도 기본권의 주체가 될 수 있나요? ······················································································· 48
3. 생명이 없는 법인도 기본권의 주체가 될 수 있나요? ······································································· 49
4. 법을 집행하는 공무원도 기본권의 주체가 될 수 있나요? ································································ 51
제4절 기본권의 효력 ··································································································································· 52
제1항 기본권의 대국가적 효력 ···················································································································· 52
1. 국가로부터 침해를 당하면 언제나 헌법소원심판을 청구할 수 있나요? ···········································52
2. 사경제주체로서의 국고작용은 왜 헌법소원심판을 청구할 수 없나요? ············································52
제2항 기본권의 대사인적 효력 ··················································································································· 54
1. 사인이 기본권을 침해해도 헌법상 구제를 받을 수 있나요? ···························································· 54
2. 사인의 기본권 침해도 헌법소원으로 구제받나요? ·········································································· 54
제5절 기본권의 갈등 ··································································································································· 56
제1항 기본권의 경합 ··································································································································· 56
1. 직업을 잃어서 행복을 침해당하면 어떤 권리를 주장해야 하나요? ·················································· 56
2. 기본권 사이에도 우열이 있나요? ··································································································· 57
제2항 기본권의 충돌 ··································································································································· 59
1. 건물 전체 금역구역 지정은 기본권 침해 아닌가요? ········································································ 59
2. 서로 다른 기본권이 충돌하면 언제나 상위기본권이 이기나요? ······················································ 60
제6절 기본권의 제한과 한계 ······················································································································ 62
제1항 기본권의 제한과 한계 ······················································································································· 62
1. 국가는 국민의 기본권을 어느 정도까지 제한할 수 있나요? ···························································· 62
2. 국가의 기본권 제한이 합헌인지 위헌인지 어떻게 판단하나요? ······················································ 62
제2항 기본권의 제한의 유형 ······················································································································· 63
1. 국민의 기본권은 헌법으로만 제한할 수 있나요? ············································································ 63
제3항 기본권 제한의 일반원칙 ··················································································································· 64
1. 법률로 모든 기본권을 제한할 수 있나요? (제한의 대상) ································································· 64
2. 상대적 기본권은 언제나 제한할 수 있나요? (제한의 목적) ······························································ 64
3. 기본권은 법률로써만 제한할 수 있나요? (제한의 형식) ·································································· 64
4. 기본권이 침해당했는지는 어떻게 판단하나요? (제한의 정도) ························································· 65
제7절 기본권의 확인과 보장 ······················································································································· 67
1. 국가는 기본권 침해를 예상하여 미리 보호할 의무가 있나요? ························································· 67
2. 국가는 사인의 침해까지 예상해서 보호할 의무가 있나요? ····························································· 67
제8절 기본권의 침해와 구제 ······················································································································ 69
1. 일본군 위안부 피해자들을 국가가 방치하면 기본권 침해인가요? ··················································· 69
2. 우리나라에 인권을 보호하기 위한 국가기관으로 어떤 것이 있나요? ··············································· 70
제2장 ❙기본권과 제도적 보장 / 73
제1절 제도적 보장 ······································································································································· 73
1. 호주제도는 우리나라 전통이니까 헌법이 보장해야 하나요? ··························································· 73
2. 기본권 보장과 제도적 보장은 같은 건가요? ··················································································· 73
제2절 정당제도 ··········································································································································· 74
제1항 정당의 개념과 성격 ··························································································································· 74
1. 공산당도 정당으로 헌법상 보호받을 수 있나요? ············································································ 74
2. 정당은 단순한 사람들의 모임인가요? 아니면 법인인가요? ····························································· 74
제2항 헌법상 정당조항 ······························································································································· 76
1. 여당과 야당은 무슨 뜻인가요? ······································································································· 76
2. 올리고당을 설립하려는데, 국가의 허락을 받아야 하나요? ····························································· 76
3. 5백 명으로 올리고당을 만들어 군인, 경찰도 가입하게 할 수 있나요? ············································· 78
4. 올리고당에서 쿠데타를 계획해도 헌법상 보호받나요? ··································································· 80
5. 쿠데타를 계획한 올리고당은 어떻게 처리되나요? ·········································································· 80
제3절 지방자치제도 ···································································································································· 83
제1항 지방자치제도의 개념과 성격 ············································································································· 83
1. 동작구청장을 주민투표로 뽑을 권리는 헌법상 권리인가요? ··························································· 83
제2항 지방자치제도의 내용 ························································································································ 84
1. 서울시와 광명시는 같은 행정구역인가요? ····················································································· 84
2. 노량진동을 명랑동으로 바꾸려면 반드시 주민투표를 해야 하나요? ···············································85
3. 동작구 주민이 동작구청장을 해임시킬 수도 있나요? ····································································· 85
4. 동작구에서 전염병 예방접종을 하면 그 비용은 누가 부담하나요? ·················································· 87
5. 생활보호법이 있는데 이와 다른 내용의 조례를 만들 수 있나요? ····················································· 87
제3장 ❙포괄적 기본권 / 89
제1절 인간의 존엄과 가치 ··························································································································· 89
1. 인간의 존엄은 중요하니까 다른 기본권보다 우선 적용되나요? ······················································ 89
2. 생명권은 헌법에 명시되지 않았는데도 헌법의 보호를 받나요? ······················································ 89
3. 한미연합 군사훈련으로 북한을 자극하면 평화적 생존권 침해인가요? ············································90
4. 난 잘했는데, 엄마가 사과하라고 하면 미안하다고 말해야 하나요? ················································· 90
5. 사형제도는 헌법 최고의 가치인 생명권을 침해하니까 위헌인가요? ···············································92
6. 범죄를 저지른 사람의 인격도 보호받나요? ···················································································· 94
제2절 행복추구권 ························································································································ 96
1. 공부하는 지금 당신은 행복한가요? ································································································ 96
2. 행복은 사람마다 다르니까 명확하지 못한 규정인가요? ·································································· 96
3. 마약을 할 권리도 헌법상 권리로 보호되나요? ················································································ 98
제3절 평등권 ······································································································································104
1. 시험 성적이 나쁘다고 나만 불합격시키는 것은 차별대우 아닌가요? ··············································· 104
2. 남자만 군대를 가는 건 너무 불합리한 차별 아닌가요? ··································································· 105
3. 공무원 시험에서 특정한 사람에게만 가산점을 주어도 괜찮은 건가요? ··········································106
4. 여자는 힘이 약하니까 항상 특별한 혜택을 주어야 하나요? ···························································· 107
5. 여경할당제는 불합리한 남녀차별로서 평등권 침해 아닌가요? ·······················································110
제4장 ❙자유권적 기본권 / 112
제1절 신체의 자유권 ··································································································································· 112
1. 회사의 정관을 위반했는데 감옥에 가야 하나요? ············································································ 113
2. 필리핀에서 살인죄로 징역을 살았는데 한국에 오면 또 처벌되나요? ··············································· 114
3. 김순경이 불법을 저지르면 직속상관도 무조건 함께 처벌되나요? ··················································· 115
4. 범칙금을 내지 않았다고 바로 즉결심판으로 처리할 수 있나요? ····················································· 116
5. 수사를 받으면서 아무 말도 안한다고 고문을 할 수 있나요? ··························································· 118
6. 도둑질 현장에서 발각된 범인은 영장 없이 체포할 수 있나요? ························································ 119
7. 범행 현장에서 체포되었습니다. 지금 나는 무엇을 해야 하나요? ···················································· 120
8. 신체의 자유를 보장하기 위한 기타의 기본권은 무엇이 있나요? ····················································· 124
제2절 사생활 자유권 ··································································································································· 125
제1항 주거의 자유 ······································································································································· 125
1. 체포영장을 받았다면 별도의 수색영장 없이도 주거를 수색할 수 있나요? ······································· 125
제2항 사생활의 비밀과 자유 ······················································································································· 126
1. 공직선거 후보자가 되려면 범죄경력을 모두 공개하나요? ······························································ 126
2. 지문은 개인정보인데 국가의 관리에 맡겨도 괜찮을까요? ······························································ 127
제3항 통신의 자유 ······································································································································ 128
1. 교도소 수용자가 국가에 서신을 발송할 때 교도소장의 허가가 필요한가요? ···································128
제3절 정신적 자유권 ··································································································································· 130
제1항 양심의 자유 ······································································································································· 130
1. 사죄광고 명령과 법위반사실 공표 명령은 양심의 자유를 침해하나요? ···········································130
2. 양심적 병역거부자를 무조건 처벌하는 것이 옳을까요? ·································································· 131
제2항 종교의 자유 ······································································································································ 132
1. 교도소의 수형자들도 종교의 자유를 보장받나요? ·········································································· 132
제3항 언론·출판의 자유 ····························································································································· 133
1. 숙취해소 음료가 부쩍 많아졌는데 이건 음료인가요, 약인가요? ····················································· 133
2. 성인용 19금 야한 소설도 독자들의 알권리로 보호되나요? ····························································· 133
3. 방송매체에서 내가 나쁜 사람으로 표현되었다면 어떻게 구제받나요? ············································134
4. 영화의 내용을 국가가 관리해주면 좋은 것 아닌가요? ···································································· 135
제4항 집회·결사의 자유 ····························································································································· 137
1. 2명만 모여도 집회가 될 수 있을까요? ···························································································· 137
2. 옥외 집회 신고제도는 헌법상 사건허가금지 위반 아닌가요? ·························································· 137
제5항 학문과 예술의 자유 ·························································································································· 138
1. 국가가 마음대로 경찰대학을 폐지해도 되나요? ············································································· 138
2. 학교 교원이 정부를 비판하여도 학문의 자유로 보호받나요? ·························································· 139
제5장 ❙경제적 기본권 / 140
제1절 거주이전의 자유 ································································································································ 140
1. 서울광장 주변 차벽설치로 통행을 제지하면 거주이전의 자유 침해인가요? ····································140
2. 해외 전쟁지역 방문을 금지하는 것은 거주이전의 자유 침해인가요? ··············································· 140
제2절 직업의 자유 ······································································································································ 141
1. 성매매행위도 직업으로 보호받나요? ····························································································· 141
2. 경력직 공무원에게 주던 변리사자격을 갑자기 박탈해도 되나요? ··················································· 141
3. 한약학과 졸업자에게만 한약사 시험 응시기회를 주면 직업의 자유 침해인가요? ····························142
제3절 재산권 ······································································································································144
1. 국립공원 입장료를 토지소유자 수입이 아니라 국가 수입으로 해도 되나요? ·································144
2. 개발제한구역에서는 토지소유자가 살 집을 짓는 것도 안되나요? ··················································· 145
제6장 ❙정치적 기본권 / 146
제1절 선거권과 선거제도 ···························································································································· 146
1. 남자에게만 선거권을 인정하면 평등선거의 원칙에 위배되나요? ····················································146
2. 교도소 수용자에게도 선거권을 인정해야 하나요? ·········································································· 147
3. 용산구에는 국회의원이 1명인데, 왜 동작구에는 2명인가요? ·························································· 147
4. 국회의원 후보는 좋은데 그 소속 정당이 싫을 때는 어떻게 투표하나요? ········································· 148
제2절 공무담임권과 공무원제도 ················································································································· 149
1. 공무원은 누구나 다 정년이 보장되나요? ························································································ 149
2. 경찰청의 일반직 인원을 갑자기 23배나 늘려서 승진기회를 제한해도 되나요? ·······························149
3. 몇 살까지 경찰시험에 응시할 수 있나요? ······················································································· 150
4. 우리나라에서는 나이를 어떻게 계산하나요? ·················································································· 150
5. 상수도 검침업무를 담당하던 지방공무원을 직권면직할 수도 있나요? ············································151
제3절 직접참정권(국민투표권) ··················································································································· 152
1. 국가의 모든 정책을 국민투표로 결정할 수 있나요? ········································································ 152
2. 대통령 탄핵을 국민투표로 정할 수 있나요? ··················································································· 152
제7장 ❙청구권적 기본권 / 153
제1절 청원권 ·······························································································································153
1. 국민이라면 누구나 자유롭게 국가기관에 청원을 할 수 있나요? ····················································· 153
2. 사익적 내용으로 청원을 못한다면 이러한 권리는 어떻게 구제하나요? ···········································154
제2절 재판청구권 ········································································································································ 155
1. 특허청 공무원의 심판도 법관에 의한 재판인가요? ········································································· 155
2. 국민참여재판은 법관에 의한 재판을 받을 권리를 침해하나요? ······················································ 156
3. 1심판결에 불복하여 바로 3심 대법원에 상고할 수 있나요? ···························································· 156
제3절 기타의 청구권 ··································································································································· 157
1. 억울하게 옥살이를 한 사람은 어떻게 구제하나요? ········································································· 157
2. 공무원의 과실 없는 불법행위에 대해서도 손해배상을 청구할 수 있나요? ······································· 157
3. 억울하게 살해당한 사람의 유족들도 국가에 보상을 청구할 수 있나요? ·········································· 157
제8장 ❙사회적 기본권 / 159
제1절 인간다운 생활권 ································································································································ 159
1. 회사 급여가 너무 적을 때 국가에 더 달라고 청구할 수 있나요? ······················································ 159
2. 국가의 DD 생계보호급여가 최저생계비의 50% 수준이면 기본권 침해인가요? ····································· 160
제2절 교육을 받을 권리 ······························································································································ 161
1. 이사 간 친구가 사는 다른 지역의 중학교로 입학할 수 있나요? ······················································· 161
2. 고등학생 교육도 의무교육이라서 무상교육 혜택을 받나요? ··························································· 162
제3절 근로의 권리 ······································································································································ 163
1. 회사를 상대로 나 혼자 협상하기 힘들 땐 어떻게 해야 하나요? ······················································· 163
2. 아르바이트할 때 임금이 지나치게 부족하면 구제받을 수 있나요? ·················································· 163
제4절 근로3권 ····································································································································164
1. 단결권, 단체교섭권, 단체행동권은 어떤 권리들인가요? ································································· 164
2. 근로자가 싫어해도 노동조합 가입을 강제할 수 있나요? ································································· 164
3. 청원경찰에게도 경찰처럼 단체행동권이 제한되나요? ···································································· 165
제5절 환경권 ······································································································································166
1. 선거운동 때마다 확성기 소음이 너무 시끄러운데 이래도 되나요? ·················································· 166
제6절 혼인과 가족생활의 권리 ··················································································································· 167
1. 결혼했다는 이유만으로 세금이 더 많이 나와도 되나요? ································································· 167
2. 새엄마가 돌아가셨을 때 그 새엄마의 재산을 내가 상속받을 수 있나요? ········································· 168
제9장 ❙국민의 기본적 의무 / 169
제1절 납세의 의무 ······································································································································· 169
제2절 국방의 의무 ······································································································································ 169