법치주의 현실 개선과 행정입법의 사법적 통제에 관한 연구 = A Study on the improvement in the "rule of law" and the judicial control over administrative rulemaking

국문 초록 (Abstract)

민주주의와 마찬가지로 법치주의는 나라마다 그 고유한 역사적 배경 하에서 발전되어 왔다. 법치주의가 우리 헌법상 인정되는 기본원리라는 점에 대해서는 대체로 견해가 일치한다. 2008년 2월 출범한 새 정부는 선진일류국가 목표달성의 핵심 전략으로 과거 어느 정부보다도 법치주의를 강조하고 있어 이제 법치주의는 우리 사회에서 가장 논의가 집중되는 화두로 등장하고 있다. 화두의 핵심은 우리의 법치주의가 주권자인 국민의 기본권을 실질적으로 최대한 보장하고 이러한 목적 달성을 위하여 국가작용을 실질적으로 규율하고 있는가? 이다.
본 논문에서는 이러한 시대적 상황에서 법률가로서 우리의 법치주의가 더 발전하고 실질적으로 구현되기 위해서 가장 진지하게 고찰해야 할 관건은 무엇이고 어떻게 해야 현실의 법치주의를 한 단계 더 나은 차원으로 발전하게 할 수 있을 것인가에 대하여 연구를 전개한다. 연구의 순서는 다음과 같다. 법치주의 원리의 의의를 살펴보고 그것이 어떻게 전개되어 왔으며 법치주의를 구성하는 요소는 무엇인지를 기술한다. 우리 헌법재판소와 법원의 판례에서 법치주의는 어떻게 정의되고 구체적으로 실현되고 있는지 대표적인 판례를 선별하여 분석한다. 국민의 복지실현과 세계화 시대에 급변하는 환경에 적응하기 위하여 행정의 역할이 나날이 확대되고 있고 이로 인하여 제기되고 있는 법치주의의 위기와 문제점을 정리한다. 이에 대한 해법으로 행정에 대한 사법적 통제의 중요성을 기술한다. 오늘날 국가 작용 중 가장 중요하고 날로 확대되어 가는 행정부의 활동, 이 행정부 활동의 기준이 되는 행정입법이 국민의 권리를 제대로 보호하고 실현시켜 줄 수 있는 방향으로 나아가도록 어떻게 통제해야 할 것인가가 중심 명제이다. 이어 선진외국에서의 행정입법에 대한 사법적 통제를 비교법적으로 기술함으로써 우리나라가 나아갈 방향에 대한 시사점을 얻고자 한다.
독일과 프랑스에서 법치국가원리의 역사적 발전 과정을 살펴보고 헌법재판소와 법원의 행정입법에 대한 중첩적인 통제를 정리한다. 아울러 미국에서 법원이 행정부의 법해석을 어떻게 다룰 것인가 하는 문제에 대하여 가히 혁명적이라고 평가받는 Chevron 판결을 집중적으로 살펴보고 우리 판례와의 관련성 등을 기술한다. 이어 비록 사법소극주의로 평가받지만 우리의 법제와 밀접한 일본에서의 행정입법에 대한 사법적 통제를 기술한다. 이어 우리나라에서의 행정입법의 사법적 통제를 기술한다. 행정입법에 대한 통제의 의의와 행정입법에 대한 입법적 통제 및 행정부 자체의 행정적 통제를 개괄해 본다. 행정입법에 대한 위헌심사제의 유형과 우리나라에서의 헌법재판소와 법원의 이원적 위험심사 구조를 기술한다. 구체적인 행정입법의 종류에 따른 헌법재판소와 법원의 사법적 통제를 판례를 통하여 분석․정리한다. 마지막으로 일상생활에서의 국민들의 법치주의 현실과 이를 개선하기 위한 논의를 기술함으로써 그동안의 압축성장의 덕분으로 선진국에 거의 진입직전에 있는 우리의 경제발전 수준에 걸맞게 우리의 법률문화, 법질서도 한 차원 높일 수 있는 방안에 대한 제안을 시도해 보고자 한다. 우리나라의 법의식 실태와 낮은 법․질서 수준을 실증적으로 분석하고 법치주의에 대한 논의를 종래의 법이론적 관점에서 국가발전이라는 관점으로 이동하여 사회적 자본의 측면에서 기술한다. 이는 법치주의를 국민의 실제 생활과 밀접하게 관련시켜 선진국 수준의 법치주의에 도달하기 위해서 어디에 역점을 두어야 할 것인가를 알기 위해서이다. 우리의 법치주의 현실을 개선하기 위한 방안으로 먼저 법치주의에 대한 인식의 차이를 극복해야 하고 국민들에게 지킬 수 있는 법을 제공하기 위하여 법령을 정비하고 법을 알기 쉽게 만들어야 한다는 점, 법을 잘 지킬 수 있는 사회적 분위기와 체질을 강화하기 위한 법교육의 필요성과 실천방법 등을 정리한다. 끝으로 우리의 법치주의 현실을 개선하기 위하여 행정입법에 대한 사법적 통제의 강화가 필요하다는 점을 헌법재판소와 법원의 역할이 적극적이고 상호보완적으로 전개되어야 하고 이를 위해 기존의 헌법재판소의 인적 구성 관행에 변화를 시도할 필요가 있다는 점 등을 통해서 다시 한번 강조하고 아울러 법집행의 일관성을 유지하면서도 대화와 설득을 통한 포용이라는 한국적 현실에 맞는 법치주의 모델-인본적 법치주의(rule of law based on humanism)-을 추구해야 한다는 점을 결론으로 정리한다.

목차 (Table of Contents)

• 제1장 서론 ·····································································1
• 제1절 연구의 목적·······························································1
• 제2절 연구의 범위와 방법······················································5
• 제2장 법치주의 의의와 현실·············································8
• 제1절 법치주의의 원리··························································8
• 1. 의의···········································································8
• 2. 법치주의의 전개···························································9
• 3. 법치주의의 구성 요소·····················································13
• 4. 법치주의 구현의 두 가지 관건···········································15
• 제2절 우리 판례상의 법치주의···············································17
• 1. 헌법재판소 ································································17
• 2. 법원··········································································27
• 제3절 법치주의의 위기와 문제점·············································45
• 1. 행정의 확대·································································45
• 2. 법치주의의 위기····························································48
• 3. 우리나라 법치주의의 문제점··············································49
• 제4절 행정에 대한 사법적 통제의 중요성··································51
• 1. 행정에 대한 통제 개관····················································51
• 2. 행정입법에 대한 사법적 통제············································54
• 제3장 주요 외국의 행정입법에 대한 사법통제··················56
• 제1절 독일․프랑스 ···························································56
• 1. 개설··········································································56
• 2. 독일·········································································58
• 3. 프랑스·······································································63
• 제2절 미국·······································································69
• 1. 개설··········································································69
• 2. 사안별 접근에서 일률적인 존중형 심사로의 전환·····················75
• 3. 존중심사원칙의 적용범위················································94
• 4. 1단계심사의 동향과 그 의의············································107
• 5. 2단계 심사의 동향과 그 도달점········································130
• 6. 결어········································································140
• 제3절 일본····································································146
• 1. 개설 ·······································································146
• 2. 사법권의 개념과 한계····················································147
• 3. 위헌심사제·································································157
• 4. 항고소송····································································194
• 제4장 우리나라의 행정입법에 대한 사법적 통제···················198
• 제1절 개설············································································198
• 1. 행정입법에 대한 통제의 의의·····················································198
• 2. 입법적 통제와 행정적 통제·····················································199
• 제2절 위헌심사제의 유형과 행정입법의 위헌심사································202
• 1. 위헌심사제의 의의와 유형······················································202
• 2. 우리나라 행정입법 위헌심사의 2원적 구조···································203
• 제3절 행정입법에 대한 사법심사···················································207
• 1. 행정입법의 의의와 종류··················································207
• 2. 법규명령··································································212
• 3. 행정규칙 형식의 법규명령(법규적 성질을 갖는 행정규칙)·······218
• 4. 법규명령 형식의 행정규칙··········································238
• 5. 행정규칙·······························································246
• 제4절 결어······································································254
• 제5장 법치주의 현실과 개선 방안··································256
• 제1절 법치주의의 현실·······················································256
• 1. 우리나라의 법의식 실태·················································256
• 2. 법․질서가 지켜지지 않는 원인········································260
• 3. 법․질서 수준의 국제적 비교···········································263
• 4. 국민의 일상생활에서의 법치주의 고양································268
• 제2절 사회적 자본으로서의 법치주의······································269
• 1. 법치주의 관점의 이동····················································269
• 2. 법치주의와 국가발전의 상관관계·······································270
• 3. 사회적 자본의 정의와 중요성···········································275
• 4. 우리나라의 사회적 자본·················································282
• 제3절 법치주의의 개선방안·················································288
• 1. 논의의 초점································································288
• 2. 법치주의에 대한 인식차이의 극복·····································289
• 3. 법령의 정비································································295
• 4. 법교육의 강화·····························································340
• 제6장 결론 ····································································349
• 제1절 행정입법에 대한 사법적 통제의 강화·······························349
• 제2절 한국적 법치주의의 모델 정립········································350
• 참고문헌··········································································353
• Abstract··········································································369