헌법재판순명론

서 문 ··················································13

第1章 지금, 대한민국의 수도는 어디인가? ···················17
- 수도이전 위헌 결정의 역설 -
I. 들어가는 말 ·············································19
II. 국민투표권의 침해 여부에 관한 헌재의 판단 ················20
1. 문제의 소재 ··········································20
2. 국민투표권 침해를 인정한 헌재의 논거 ···················22
III. 검토 ··················································24
1. 이 사건 법률로써 수도가 이전되었나? ····················24
2. 법률로써 헌법이 개정될 수 있는가? ·····················28
3. 이 사건 법률로써 헌법은 과연 개정되었는가? ·············38
4. 이 사건 법률이 위헌으로 결정될 수 있는가? ··············39
5. 이 사건 법률에 대한 위헌결정은 헌법의 효력에 영향을 미칠 수 있는가? ··· 40
IV. 결론 ··················································42

第2章 이른바 양심적 병역거부 관련 헌법재판소 결정에 관한 검토
···················································45
Ⅰ. 서론 ··················································47
Ⅱ. 전제되는 논의 ·········································48
1. 무엇이 병역인가? ·····································48
2. 청구인들의 주장 ······································54
3. 소결론 ···············································57
Ⅲ. 대상성 문제 – 진정입법부작위와 부진정입법부작위의 구별 문제 ·····57
1. 문제의 제기 ··········································57
2. 기준 ·················································58
3. 이 사건의 경우 ·······································62
4. 소결론 ···············································65
Ⅳ. 재판의 전제성 문제 ·····································66
1. 문제의 제기 ··········································66
2. 적용 ·················································66
3. 다른 내용의 재판 ·····································68
4. 소결론 ···············································74
Ⅴ. 결론 ··················································75

第3章 2006헌마328 병역법 사건에 관한 절차법적 검토 ·········77
Ⅰ. 서론 ··················································79
Ⅱ. 사건의 내용 중 절차법에 관련된 부분 ·····················80
1. 사건의 개요와 검토 대상 법률 조항 ······················80
2. 헌재 결정 중 적법성 판단 부분 ·························81
Ⅲ. 연구 ··················································82
1. 기본권 침해 가능성 ····································82
2. 직접성 ···············································88
3. 청구기간 ·············································94
4. 심판청구의 이익 ······································97
5. 기타 ···············································109
Ⅳ. 결론 ·················································111

第4章 재판의 전제성에 관한 관견 ···························113
I. 들어가는 말 ···········································115
II. 적용될 것 ·············································117
1. 사례(헌재 2011. 10. 25. 2010헌바476) ·················117
2. 검토 ···············································118
III. 이유를 달리하는 경우 ··································130
1. 헌재의 결정례 ·······································130
2. 검토 ···············································134
IV. 재판의 내용과 효력에 관한 법적 의미가 달라지는 경우 ·····136
1. 사례 ···············································136
2. 검토 ···············································140
V. 여론 - 표현 자체의 문제 ································146
1. 들어가는 말 ·········································146
2. ‘원칙적으로’ ·········································147
3. ‘원칙’과 ‘예외’의 관계 ································148
4. ‘주문이나 결론이 달라지는 경우’와 ‘재판이 가지는 법적 의미가 달라지는 경우’의 관계 ·································148
5. 기타 ···············································149
VI. 결론 ·················································150

第5章 재판의 전제성 중 ‘재판이 가지는 법적 의미를 달리하는 경우’라는 요건의 필요성 ························································································ 151
I. 서론 ··················································153
II. 사건의 개요와 판단 ····································154
1. 사건의 개요와 심판의 대상 ····························154
2. 헌재의 판시 ·········································155
III. 일반론 ···············································156
1. 논의의 전제 ·········································156
2. 판례의 흐름 ·········································158
3. 92헌가8 사건의 판시 분석 ····························172
IV. 대상결정에 대한 평가와 새로운 입론 ·····················175
1. 평가 ···············································175
2. 입론 ···············································179
V. 결론 ·················································181

第6章 형벌조항에 대한 위헌 결정으로 인한 재심의 범위 ·······183
I. 서론 ··················································185
II. 헌재법 제47조 제3항 단서의 의의 ························186
1. 문제의 제기 ·········································186
2. 헌재법 제47조 제4항의 해석 ···························188
3. 헌재법 제47조 제3항 단서의 재판의 전제성 ··············194
4. 헌재법 제47조 제3항과 제4항의 관계 ···················196
5. 소결론 ··············································204
III. 소급효 제한의 기준 ····································206
1. 도입 ···············································206
2. 대법원의 입장 ·······································207
3. 검토 ···············································207
IV. 법률에 대한 헌재법 제68조 제1항에 의한 헌법소원 ········211
1. 도입 ···············································211
2. 차단효 ··············································212
3. ‘위헌’ 결정? ·········································215
V. 결론 ·················································216

第7章 형사재판 중 적용법령에 대해 헌법소원을 제기하였을 때의 직접성 문제 ········································································································ 219
I. 도입 ··················································221
II. 사건의 개요와 헌재의 판단 ······························222
1. 사건의 개요 ·········································222
2. 헌재의 판단 요지 ····································223
III. 연구 ·················································225
1. 형벌조항으로 인한 기본권 침해의 내용 ··················225
2. 직접성 원칙의 적용 ··································234
IV. 결론 ·················································247

第8章 한국의 위헌심사 ····································249
I. 서론 ··················································251
II. 관할 ·················································252
1. 서론 ···············································252
2. 내용 ···············································252
3. 통계 ···············································256
III. 통치구조 안에서의 위치 ································257
1. 헌재의 성격 ·········································257
2. 구성 ···············································257
3. 국회와의 관계 ·······································258
4. 정부와의 관계 ·······································258
IV. 법원과의 관계 ········································259
1. 서론 ···············································259
2. 수평적 관계 ·········································259
3. 재판소원 문제 ·······································260
4. 명령 · 규칙에 대한 위헌심사 문제 ······················261
5. 변형결정의 문제 ·····································262
V. 위헌 결정의 효력 ······································265
1. 법률의 규정 ·········································265
2. 一般效··············································266
3. 違憲 決定의 時的 效力································266
4. 羈束力··············································267
VI. 미래의 전망 ··········································268
1. 서론 ···············································268
2. 헌법해석의 통일성 보장책 ·····························269
3. 재판소의 구성 ·······································270
4. 관할 ···············································271
V. 결론 ·················································272

第8-1章 韓国の違憲審査制度···························275
I. 序論··················································277
II. 管轄·················································278
1. 序論···············································278
2. 内容···············································283
3. 統計···············································283
III. 統治構造の中における位置付け···························283
1. 憲裁の性格··········································283
2. 構成···············································284
3. 国会との関係········································284
4. 政府との関係········································285
IV. 法院との関係·········································286
1. 序論···············································286
2. 水平的関係··········································286
3. 裁判訴願問題········································287
4. 命令・規則に対する違憲審査問題·······················289
5. 変形決定の問題······································290
V. 違憲決定の効力········································292
1. 法律の規定··········································292
2. 一般効··············································293
3. 違憲決定の時的効力··································293
4. 羈束力··············································295
VI. 未来への展望·········································295
1. 序論···············································295
2. 憲法解釈の統一性保障策·······························297
3. 裁判所の構成········································298
4. 管轄···············································299
V. 結論·················································300

第8-2章 韩国违宪审查制度·····························303
Ⅰ. 绪论·················································305
Ⅱ. 管辖·················································305
1. 绪论···············································305
2. 内容···············································306
3. 统计···············································308
Ⅲ. 统治结构中位置·······································308
1. 宪裁的性质··········································308
2. 结构···············································309
3. 与国会的关系········································309
4. 与政府的关系········································310
Ⅳ. 与法院的关系·········································310
1. 绪论···············································310
2. 水平关系············································311
3. 裁判诉讼问题········································311
4. 对命令、规则的违宪审查问题···························311
5. 变形判决制度的问题··································312
V. 违宪判决的效力········································313
1. 法律规定············································313
2. 效力···············································314
3. 违宪判决的时间效力··································314
4. 羁束力··············································315
VI. 未来瞻望·············································315
1. 绪论···············································315
2. 宪法解释统一性的保证方法·····························316
3. 裁判所的构成········································317
4. 管辖···············································318
V. 结论·················································318

第9章 韓国の憲法裁判の現況と展望··························321
1. 憲法裁判の意義········································323
2. 憲法裁判機関の分類····································327
3. 韓国の憲法裁判所······································329
4. 将来 - 日本への示唆···································342
5. 結論·················································347

[ 저자서문 ]

그 동안 썼던 헌법재판제도와 관련된 글들을 모아 보았다. 다만, 법령에 대한 헌법소원에 관한 것은 제외하였다. 이것들은 따로 모아서 간행할 예정이다.
제1장에서 다룬 수도이전 결정(헌재 2004. 10. 21. 2004헌마554등)은 현재 이슈로 되고 있다. 더불어민주당이 다시 수도이전을 정책목표로 내세웠는데, 이 결정이 극복하여야 할 중요한 과제로 되었다. 이 글이 다루는 대상 결정은, 필자가 좀 거칠게 말한다면 헌법재판관들이 헌법 재판권을 사유화한 결과물이라고 본다. 그 결론이 법적 이성의 추론을 통해 얻어낸 결과물이라 보이지 않는다. 재판관들이 시민으로서 수도 이전에 대해 가지고 있던 결론, 즉 수도를 이전하여서는 안 된다는 결론을 먼저 세운 후, 헌법과 헌법재판이론을 뒤틀어서 뒷받침하였다.
우선 그 결정문이 자연스럽지 않다. 서울이 수도라는 관습헌법이 존재한다면, 법률로써 헌법을 개정함으로써 헌법개정에 필요한 국민투표권이 침해될 수 있으므로 청구인들의 심판청구가 적법하다고 판단하였다. 적법요건을 판단하면서 모든 본안 문제를 다 다루었다. 언제 헌법재
판소가 이리 친절하였는지 모르겠다. 그 전에도 이리 친절하지 않았고 그 후로도 이렇게 친절하였던 적이 없다. 이 선택적 친절함은 사법에 대한 신뢰를 무너뜨린다.
관습헌법이 존재하는가는 차치하고, 결정문의 앞부분에서는 일반론으로 “우리나라와 같은 성문의 경성헌법 체제에서 인정되는 관습헌법사항은 하위규범형식인 법률에 의하여 개정될 수 없다”(판례집 16-2하,48)면서도 결국은 법률로써 헌법을 개정하였다고 하니, 당혹스럽다. 하
나의 결정문 안에서 결론을 이끌어내는 핵심적인 논리가 앞 다르고 뒤 다르다. 헌재는 2013. 11. 28. 2012헌마166 결정에서 이를 사실상 폐기하였다.
학교에 와서 헌법재판소의 결정들을 읽고 분석하는 것을 업으로 삼는데, 일관된 룰에 따라 재판이 이루어진다는 느낌을 가지기 어렵다. 재판의 기준이 되는 룰이 그때 그때 달라지니 그 결론의 향방을 가늠할 수 없다. 특별하고 이례적이며 예외적인 판시들은 늘 중요한 사건에서 나온다. 결론이 탐나는 사건들이다. 앞에서 본, 수도이전 결정도 그렇고, 긴급조치 결정도 그렇다. 법원과의 관계를 획정하는 중요한 결정이었던 96헌마172 사건도 그렇다. 왜 민초들이 제기한 사건에서는 관습헌법론과 같은 발상을 못 하는가? 혹시 기존의 이론으로는 원하는 결론에 이르기 어려우니 새로운 이론을 창설하는 것은 아닌가?
대한민국은 민주주의 사회다. 민주주의란 국가 공동체의 구성원인 ‘국민’이 공동체의 나아갈 방향을 설정하여야 한다는 원리다. 국민이 직접 결정하기 어려우니 대표를 뽑아 그들이 공동체의 나아갈 방향을 결정하도록 정했다. 이것이 간접민주주의다. 그 대표들은 국민들을 바라 본다. 끝임 없이 국민들이 무엇을 원하는가를 탐색한다. 국민들이 원하는 바를 법으로 만들어내고자 노력한다. 그들은 다음의 선거에서 국민들로부터 심판을 받는다. 이것이 민주주의다.
국회의 잘못된 결정을 교정하는 절차로 헌법재판제도를 두었다. 우리 헌법이 스스로 헌법재판제도를 두고, 헌법재판소가 국회의 결정을 검토할 기회를 준 것은 맞다. 이것이 민주주의에 반하는 것 아니냐, 하는 논의는 불필요하다. 헌법을 제정하거나 개정할 권한이 있는 국민들이 의회민주주의의 문제점을 인식하고 이를 교정할 절차를 스스로 설정했기 때문이다.
그렇더라도 헌법재판소에 맡겨진 임무를 잊어서는 안 된다. 헌법재판소는 헌법을 지키는 기관이다. 헌법이 말하는 바가 무엇인가를 확인하고 그 범위를 국회가 유월하였는가, 그것만 판단하면 헌재가 할 일은 다 한 것이다. 그러다 나라 망하면 어떡하느냐 걱정할 일은 아니다. 그것은 헌법재판소가 책임질 일이 아니다. 국회가, 그리고 정부가 책임질 일이다. 그리고 헌법재판 없는 나라들이 다 망한 것도 아니다. 지나친 걱정이 법치주의를 위태롭게 하고, 나라를 위태롭게 한다.
필자는 헌법재판이 順命하기를 바란다. 여기의 ‘命’ 대신에 ‘天’이라 하여도 좋을 것 같고, ‘理’라 하여도 좋을 것 같다. 어느 것이나 응당 따르고 존중하여야 할 것이다. 재판의 일이니 대신 ‘法’이 하여도 좋을 것 같다. 어느 것으로 할까 하다가 듣기가 좋은 順命을 골랐다. 孟子는 順天을 말하였다.
코로나로 힘든 세상이다. 나의 아내, 아들, 딸 그리고 영양의 형님 모두 건강하였으면 좋겠다. 그리고 함께 해 주어서 고맙다는 말을 남긴다. 꼼꼼히 원고를 검토해 준 이근옥 석사가 좋은 박사 논문을 쓰고 학문적으로 대성하시길 기원한다.

“지금 헌법상 대한민국의 수도는 ‘대전광역시·충청북도 및 충청남도 일원’, 조금 거칠게 말하면 ‘세종시’라고 보아야 한다. 이를 전제로 한다면 대통령과 국회가 수도 아닌 곳에 소재하는 현재의 상태는 위헌적인 것이고, 당연히 그 물리적 소재지가 세종시로 이전되어야 한다.”(31쪽)
“헌재가 시대적 상황을 반영하여 양심적 병역거부자를 구제해 주고자 하는 입장에 대하여 반대할 일은 아니지만, 그 결정이 과연 법리에 비추어 타당한 것인가에 대해서는 의문이 들지 않을 수 없다.”