限定違憲決定의 法院에 대한 羈束力 問題

이덕연(Lee Duk-Yeon) 한국비교공법학회 2011 公法學硏究 Vol.12 No.3

한정위헌결정의 기속력을 둘러 싼 헌재와 대법원의 갈등이 근본적으로 해결되지 못한 상태가 계속되고 있다. 1995년 양도소득세 과세기준을 둘러싸고 헌재가 한정위헌결정 (1995.11.30 94헌바40 95헌바13 병합)을 내리면서 시작된 분쟁은 대법원의 판결 (1996.4.9. 94누11405)에 대하여 제기된 헌법소원사건(1997.12.24. 96헌마172)에서 급기야 헌재가 재판소원을 금지한 헌재법 제68조 제1항에 대하여 한정위헌결정을 하면서 동시에 동 판결과 원처분을 취소하는 결정을 하여 일단락되는 듯 했으나 그 이후에도 2001년에 국가배상법 2009년에는 상속세법에 대한 한정위헌결정과 관련하여 대법원과 헌재의 충돌이 재연된 바 있었다. 그 후 96헌마172사건의 경우는 국세청이 관련 압류등기를 해제함으로써 결과적으로는 헌재의 결정취지에 따라 정리가 되었고 기타 양도세나 국가배상법과 관련하여 헌재에 제기되었던 헌법소원사건들은 청구인들이 소를 취하하여 심판이 종료되기에 이르렀다. 그 배경과 이유는 확인할 수 없지만 이 사건들의 경우에도 96헌마172사건과 마찬가지로 어떤 형식으로든 청구인들의 권리가 구제되었을 것으로 추측된다. 아무튼 관련된 개별 사건들은 정리되었지만 문제가 해소된 것이 아니라 그 근원은 그대로 남겨둔 채 서둘러 봉합된 형국이다. 헌재와 대법원 양측의 입장에 대한 찬반의견 과는 무관하게 헌법 또는 헌재법의 개정을 통해 입법적으로 해결되기 이전에라도 - 또는 바람직한 개정방안을 마련하기 위한 자료축적을 위해서라도 - 관련된 쟁점들이 좀 더 간명하고 확실하게 정리되기를 기대하였던 관점에서는 무언가 허전하고 차라리 좀 더 갈등이 불거져서 사태가 성숙되어 필요한 만큼은 승패가 가려졌어야 했는데 그 기회를 갖지 못하게 된 것이 아쉽다. 한정위헌결정의 기속력문제를 재론하는 것은 바로 이 아쉬움 때문이다. 쟁점을 굳이 다시 정리할 필요가 없을 정도로 종래 많이 논의되기는 하였으나 그냥 이런 식으로 덮어버리기에는 여전히 미진한 점이 적잖다. 적어도 변형위헌결정 특히 한정위헌결정의 형식 자체를 부정하면서 합헌적 법률해석의 원칙에 따른 한정위헌결정의 기속력 자체를 부인해 온 대법원 입장의 전제와 핵심논증 즉'법률을 해석하고 적용하는 사법권은 법원의 절대적인 전속권한이다'라는 주장은 향후 법리논쟁에서 재론될 필요가 없게 정리 되었어야 했다. 이러한 아쉬움 섞인 사견이 괜한 호기심 때문만은 아니라는 점을 해명하기 위하여 합헌적 법률해석의 원칙과 헌법 및 법률해석의 관계를 다시 짚어 보고 이 관계 속에서 헌재법 제68조의 제1항의 재판금지제도와 동 제2항의 이른바'규범통제형 헌법소원'이 가능한 한 충돌을 피할 수 있는 그럼으로써 궁극적으로 헌재와 대법원의 갈등을 피할 수 있는 법해석론상의 가능성과 구체적인 대안을 검토해 보았다.

대입3불정책의 헌법적 문제점

이덕연(Duk-Yeon Lee) 한국헌법학회 2007 憲法學硏究 Vol.13 No.3

  A dispute over the ratio of reflecting highschool performance and the records of the national College Scholastic Aptitude Test(CSAT) erupted in June 2007, just several months before the entrance exam, as some private universities appeared to refuse to adopt the government"s guidelines that put more weight on the school records, under whose policy students are decided into nine grades and their marks are supposed to account for 50 percent in assessing. Even President Roh Moo-hyun also criticized the universities for trying to undercut the principle of equal education. He once again confirm that there would be no concession in his insistence on egalitarian principles in education.<BR>  This extremely irreconcilable conflict like a military combat make it clear that the controversy over the TPP is not merely a problem of educational policy but an ideological question, also typically a ‘large-scale issue’, which is hard to find a way to make a necessary compromise. To begin with, it should a good deal of the discussion to make a contribution to debates about the optimal harmony between the almost dogmatized principles of liberal and equal education. I hope to describe that and how people who disagree on basic assumption about the goals and methods of education might and could find a way to live together with the reflection on themselves and mutual respects.<BR>  Therefore I aim to focus attention on the structure and character of the TPP as a ideology problem, but especially with the intention to emphasize on the reasons and the necessities of the abstraction of the ideological tendencies and the focalizing on the legal aspects of a constitutional problem.<BR>  In the context of the legal review, this paper is concerned with the unconstitutionality of the regulation enacted under the frame of TPP by the  Ministry of Education and Human Capital. First and foremost, the following brief reviewing shows that the TPP is illegal on the ground that it infringes the constitutional principle of the Act(Parliament)-Reservation(Prinzip des Gesetzes- bzw. Parlaments- vorbehalts in German Law) in the relation with the form of legislation.<BR>  Meanwhile, in the viewpoint of the material constitutionality, too, is the TPP considered to be in conflict with the freedom of science, including the independence of education and the autonomy of university(Art. 22. Ⅰ; Art. 31. Ⅳ) and the related ‘equal right to receive education corresponding to their abilities’(Art. 31. I).<BR>  Thus far the relevant arguments are not based on the one-sidedly emphasizing the negative aspects of the TPP. They proceed from the confirmed fact that the results of the TPP have not at all matched the purported good original intentions and the generally observable and easily predictable conditions of the unlimited open competition in global market of education. Taking the excessive dysfunction and growing severe external cost into consideration, we could insist that it"s time now for the government to reflect on his basic concept and assumptions about the TPP, which are inclined for a one-ideaed standardization and authoritative regulation in the autonomous realm of the diverse university and the freedom of science.<BR>  As a result, the government could and should not stand any more front ‘the veil of ignorance’ suggested by J. Rawls. The educational policy of based on the dogma of the egalitarianism, in particular with regard to the TPP, have to be totally reexamined at the level of the open paradigm for the deregulation.

地方自治團體의 營利收益事業의 헌법적 문제

이덕연(Lee Duk-Yeon) 연세대학교 빈곤문제국제개발연구원 2006 지역발전연구 Vol.15 No.-

법철학 및 법이론으로 본 `법적 문제`로서 사법적극주의

이덕연 ( Duk-yeon Lee ) 연세대학교 법학연구원 2017 법학연구 Vol.27 No.1

`Judicial activism` as a thesis of jurisprudence or methodology of law has been highlighted as anti-thesis of `judicial restraint`. In this article, the concern is asking for active or passive attitude to the desirable role of judge as far as `judicial discretion` is possible. This attitude is also a question about recognition of judge and `self-understanding` for `the duty to faithfulness to constitution` because it is related with political and moral philosophical position on the meaning and value of individual fundamental rights including ideology and principle of constitution ultimately. The legal theoretical discussion on what is the best way to secure an objective and valid “reasonable law” in the judicial practice is ongoing in the gap between the `objectivity` and the `arbitrary` of the law. The provisional definition of judicial activism is defined as `the aggressive attitude of the judge to independent judgment in the extent that judicial discretion exists`. In the gap between legality and legitimacy, it is based on only the legal theoretical awareness of the possibility and limitations of judicial discretion, and the degree of positive and prospective interest and willingness in how far judge lead legal anxiety and imagination if there is possibility for judicial discretion. Absolute access based on uniform standards is excluded, and a differentiated and individualized approach is inevitable. Giving an overview of legal theory as proposition of judicial activism, judicial activism in the sense defined above can not be established fundamentally as a legal problem in the context of formal conceptual jurisprudential methodology adhering to the subsumption dogma.

말 속의 국가 - 헌법국가의 요소로서 언어

이덕연(역) ( Duk Yeon Lee ),( Josef Isensee ) 연세대학교 법학연구원 2005 법학연구 Vol.15 No.4

탈 포섭도그마의 법인식작업과 법관의 법감정 새만금 판결의 소수반대의견을 주목하며-

이덕연 ( Duk Yeon Lee ) 연세대학교 법학연구원 2014 법학연구 Vol.24 No.4

In this paper, the concept of recognition may be defined as ``perception acts`` as a kind of ``mental work of fusion and composition`` that includes ``sense`` of the elements of intuitive emotional reaction with ``cognitive work`` which means ``reasonable grounds work`` to include an element of form ``logical reasoning``. In this premise, whether comprehending anything in ``the discovery of the law``, ``materialization of law`` or ``formation of law``, or understanding as complex, there is law recognition work to get up to ``legal assurance`` within comprehensive meaning ``mental work``, that is the concept of ``recognition``. Unlike traditional 3 steps theory, in view of the ``Legal interpretation theory`` to comprehend the process leading to the ``legal assurance`` as the process of a kind of ``cycle awareness`` that judge turns the eye against a law and the situation, judge, subject of recognition, is assumed also not, so called, ``automatic inclusion machine``(Subsumtionsautomat) to apply law text to the situation by a mechanical analysis, but ``self-interpreting being`` to do introspection about ``self`` ordinarily before or in work of law interpretation and situation analysis putting the whole of his personality. So to speak, it comprehend that judge as the subject of recognition is provided as a kind of mediator to be also the subject of interpretation. The judge provided as a mediator is not ``ideal judge`` but ``real-world judge``. Therefore, beyond traditional law methodology that focus only on how the ``ideal reasoning``, it is necessary to note attribute and limit of the ``judges of the real world`` as the subject of feeling and desire to have a view of the world and a view of the value with the possibility of a rational ``reason``(Denken).

생태철학과 심층생태주의의 헌법적 함의 -녹색성장 개념의 의미 확산과 심화를 위한 시론-

이덕연 ( Duk Yeon Lee ) 연세대학교 법학연구원 공공거버넌스와 법센터 2011 연세 공공거버넌스와 법 Vol.2 No.1

The word of Green Growth is in vogue nowadays. The Green Growth is one of the most principal leading agendas of the Lee Myung Bak Government. But it is not merely current political slogan. It is prescribed by the Low Carbon-Green Growth Basic Law which has been enacted in Jan. 2010. This law includes also the ``Green Technology``, ``Green Industry``, and ``Green Management`` as the essential instruments of the basic strategy of ``Green Growth``. Taking the urgent problem of the climate change into consideration, the political decision for the development plan based on the strategy of ``Low Carbon-Green Growth`` seems to be doubtlessly appropriate and reasonable. Because, above all, the climate change is not the issue of economy but the problem of survival. As A. Naess says, the doomsday prophecies might come true, if the majority of humans will sustain to live the same styles as before, and especially as the average people in the rich industrial states of the West. The problem of the ecological insustainability already seems to be not only a theoretical hypothesis. It became a real critical problem at every realm and stage of our living a life. Therefore, we can not but join the worldwide cooperation for the reduction of pollution emission. But I doubt whether the ``Green Growth`` as a legal concept took root in the sufficiently deep and broad base of our cultural consciousness. In order to consistently put the strategy and plan of the ``Green Growth`` into action, we need to institute policies which can efficiently cope with the tense conflict among the involved parties as currently seen in the debate about whether and when concerning adoption of the carbon emission trading scheme. And we also have to set the accurate programs for the reasonable compromise and mediation. This is just why we need to have the consensus about the fundamental strategy of the ``Green Growth``. From this standpoint, I try to review the necessity and possibility to extend and solidify the meaning and spirit of the ``Green Growth``. Firstly, this essay focus on the ``ecosophy`` and the ``deep ecology``, especially supposed by A. Naess, which provide influential spiritual base for the paradigm-shift and establish potent ethical platform for the modern environmental movement. This essay is written under the impression that the platform of the ``deep ecology`` is of great value for the copying with the current critical problem of the climate change, insofar as that articulate the deepest insights humans are capable of. Secondly, my concern, which is motivated from the agreement with the basic world-view of the ``deep ecology``, is to reflect the philosophy and spirit of the environmental ethics of ``deep ecology`` on the interpretation of the Art. 10(human dignity clause) of our Constitution. In conclusion, the writer found that in and by the critical restructuring of the legal concept of the ``human dignity`` on the Constitution, we can take the useful chance and the potent clues to consolidate the spiritual and actual platform of the ``Green Growth`` as a legal concept.

헌법명제로서 살림의 패러다임과 경제와 재정의 지속가능성 -녹색성장 개념의 외연확장과 심화를 위하여-

이덕연 ( Duk Yeon Lee ) 연세대학교 법학연구원 2011 법학연구 Vol.21 No.4

This essay, with the special attention to the relation between environment and politics, economy, and society, andexplores the needs and ways in which the new paradigm of ``sallim`` (eco: oikos in Greek) shapes politico-economic discourse in the context of the sustainability of economy and public finance as the constitutional theorem. But my aim here is not to propose changes of the concrete economic, financial policy but to suggest change in the viewpoints and the ways we think about the policy including decision-making system. In this context, I begin by posing deeper questions: Why do we need the new paradigm: the ``New Humanism``? What is the spirit and the philosophical basis there? My analysis begins with a definition of the sustainability in the context of the ``sallim paradigm`` based on the spirit of co-life and a review of conflicting views about the nature of human-being, purpose and meaning of living, and happiness. I suggest that we should pioneer the right route to ``the great compromise`` and that we can get the only one available chance and means from the ``amalgamation`` of ideologies, viewpoints, and systems and so on. As a conclusion in the realm of economy, I propose the reason and ways of the concrete reflection and transformation from the traditional ``Orthodox Economics`` to the ``Heterodox Economics`` toward the sustainability of economics: ``the new good economics`` which could be juxtaposed on the new philosophical basis of ecology and the ``New Humanism``. And, from the viewpoint of the public financial sustainability, I suggest the appropriateness and the necessity of a public financial reform for limiting of national debt. In conclusion, I attempt to argue that the available means and the critical clues for the effective discourse could be found from the Constitution which is itself a basic law of the political economy originated from the political, social compromise between the conflicting groups and oriented to the harmony between the present and the future generations.

소상공인문제와 소상공인지원법제의 헌법적 당위성

이덕연 ( Duk Yeon Lee ) 연세대학교 법학연구원 공공거버넌스와 법센터 2011 연세 공공거버넌스와 법 Vol.2 No.2

Protection and support for micro enterprises is a fundamental and systematic problem related to the sustainable development in our society. This paper examines the necessity of the (draft of) Act on Support for Development of Micro Enterprise and its efficiency and limitations. The issue of micro enterprises should be understood as an aspect of social polarization, which was accelerated by the Asian financial crisis. With the prospect of a large number of people shifting from the lower income group to the lowest income group, micro enterprises have been found to be part of the collective decline. Because a large proportion of the Korean industry is composed of independent businesses, a vicious cycle of excessive market entry, deterioration of profitability, and shut down persists. These problems are the result of government strategy centered on economic growth and exportation of large corporations, accompanied by public approval. Thus the economic policy must now pay more attention to micro enterprises in order to safeguard and promote them. Moreover, the majority of micro enterprises are from the lower income group and are not protected by the social security system. If the current situation continues, they are susceptible to the danger of losing their economic viability and becoming a burden to the social security system. Therefore, (draft of) Act on Support for Development of Micro Enterprise is necessary and can be justified by constitutional principles. As poverty restricts one`s participation in politics, this Act must be examined in a democratic perspective. Since individuals cannot be held responsible for poverty, the issue must be regarded as an issue of constitution and social integration. The principle of the Social State in the Korean constitution, mandates that State take an active hand in people`s lives to achieve at least the minimum level of social equality, and this also applies to micro enterprises. Also, the Constitution includes principle of the rule of law for creating and promoting a cultural norm of cooperation. If people were extremely dissatisfied with the fairness of the distribution system of the pie, social compromise and cooperation will be impossible. Hence, considering its distinct nature, the issue of micro enterprises need to be treated as a matter of discrimination and is subject to the principle of equality. The (draft of) Act on Support for Development of Micro Enterprise is deserves significant merit in that it provides a legal basis to address this issue. Nevertheless, keeping in mind that micro enterprises group consist of different types of businesses with different interests, one must proceed with caution when enforcing the policy in the following respects. First, support of the enterprise associations based on the Act must be carefully administered. Second, reasonable standards must be established for the protection level, process and measures in areas where there is conflict of interests. Lastly, preparing detailed regulations for the micro enterprises promotion fund will be crucial to avoid conflict and other management problems.

‘헌법적 정체성’ 확립의 과제와 북한이탈주민의 헌법적 지위

이덕연(Lee, Duk Yeon) 한국법학원 2013 저스티스 Vol.- No.136