국회와 문화재 주변 집회에 대한 집회 및 시위에 관한 법률 개정안의 헌법적 고찰

이희훈 ( Hie Houn Lee ) 연세대학교 법학연구원 2014 法學硏究 Vol.24 No.2

The freedom of an assembly does a constitution function realizing personal character, making up for legitimacy of democracy in a representative system and protecting a minority. Therefore, freedom of an assembly must guarantee the in principle constitutional maximum. But thefreedom of an assembly can be limited Sub-Section 2, Section 37. In the light of this perspective, if it examines it for a constitution for the revised bill of law on assembly and demonstration proposed by Lee Hak-Jae and Lee Hak-Young, a member of the National Assembly as the representative submitted to the National Assembly submitted recently, it seems to be next. First, it is somewhat proper that the revised bill of law on assembly and demonstration proposed by Lee Hak-Jae, a member of the National Assembly as the representative, the purpose of the legislation for protect cultural assets from an Assembly. However, this revised bill is violated the Void for vagueness doctrine that `nation designated cultural assets`` part and ``serious damage`` is very uncertain in the 8 article, the 3 clause, the 4 number of this same revised bill of law on assembly and demonstration. And, as for this same rule of revised bill of law on assembly and demonstration having completely limited an Assembly at the outskirts where there are cultural assets without an exception, it is violated the principle of balancing test. And, it is somewhat proper that the revised bill of law on assembly and demonstration proposed by Lee Hak-Young, a member of the National Assembly as the representative, the purpose of the legislation to delete the 11 article, the 1 number of law on assembly and demonstration for guarantee a function substituting for nation intention of the National Assembly widely. However, I cannot overlook or deny the necessity that this rule of law on assembly and demonstration does it to accomplish many achievement functions gently, and do closeness protection like a National Assembly member and so on, and security such as the National Assembly Building and so on. Therefore, it must prescribe our country like the U.S. and Germany to prohibit in principle an assembly or demonstration around the National Assembly. But it is desirable for an assembly or demonstration to prescribe it around the National Assembly so that it is possible exceptionally in the 11 article, the 1 number of law on assembly and demonstration.

합리적 흡연 규제에 대한 헌법적 고찰

이희훈 ( Hie Houn Lee ) 건국대학교 법학연구소 2015 一鑑法學 Vol.0 No.30

A rule to prohibit smoking is in principle to realize community public welfare to keep protection of freedom of a health increase of a smoker and a non-smoker and the right to be free from smoking of a non-smoker by an article 6, a clause 1 of an enforcement regulation of national health promotion act which did grounds in an article 9, a clause 4, a number 24 of national health promotion act of our country recently among all offices. And a little, a smoking prohibition method among all offices choosing in an article 6, a clause 1 of an enforcement regulation of national health promotion act which did grounds in an article 9, a clause 4, a number 24 of national health promotion act though it protect a healthy increase of a smoker and a non-smoker and a right of a non-smoker. Therefore, this same rule and enforcement regulation is not violated a principle of conformity of methods in a principle of balancing test. Besides, an article 6, a clause 3 of an enforcement regulation of national health promotion act and an annexed list 2 of a standard and a separate table to install a cover and a smoking room to tell about a nonsmoking area in about a method which did grounds in an article 9, a clause 4, a number 24 of national health promotion act prescribes installs an extra smoking room in all office inside, and to install a ventilation institution for discharge of sake cellar, cigarette smoke. Therefore, this same a rules, an enforcement regulations and an annexed list lets it minimize the right to Smoke infringement possibility of a smoker. Therefore, this same a rule, an enforcement regulation and an annexed list is not violated a principle of the smallest infringement in a principle of balancing test. In addition, Public benefit of a healthy increase of the nation who is going to carry itout by this rule is bigger than a personal interest of the smoking zone of a smoker infringed by an article 6, a clause 1 & 3 of an enforcement regulation of national health promotion act which did grounds in an article 9, a clause 4, a number 24 of national health promotion act and and an annexed list 2 of a standard and a separate table to install a cover and a smoking room to tell about a nonsmoking area in about a method. Therefore, this same arules, an enforcement regulations and an annexed list is not violated a principle of balance of the benefit and protection of the law in a principle of balancing test. In our country, reference must do a smoking regulation legislation to keep full-scale prohibition of smoking globally at an indoor place for decrease of smoking rate and a public place from now on. Therefore, our country must enforce a law of the smoking regulation that is an efficient plan a healthy increase of the nation positively.

1980년 헌법의 형성과 발전 및 평가

이희훈 ( Lee Hie-houn ) 한국외국어대학교 법학연구소 2007 외법논집 Vol.28 No.-

Compared to the Constitution for Revitalizing Reforms, the 1980 Constitution defined more basic rights, put restrictions on the president’s rights to dissolve the National Assembly and assuming emergency powers, and the former president’s right to recommend up to one third of the National Assembly members was eliminated. In the sense that such restriction were made to prevent the abuse of presidential authority and that the presidency was now restricted to one term of seven years, the revised constitution could be seen in a positive light, as one with the basic formula of a democratic constitution. However, as the 1980 Constitution still secured the presidential rights to dissolve the National Assembly and assuming emergency powers, and that the president was still elected through indirect election as of the days of the Constitution for Revitalizing Reforms, the 1980 Constitution still lacked democratic credentials. Then there was the National Defense Legislation Council, which actually had comprehensive legislation rights, same as the National Assembly, though it did not represent the Korean people by an additional clause of the 1980 Constitution. With this National Defense Legislation Council, the Cheon, Du-Hwan's administration forged mostly unconstitutional laws to his wish. According to article 6 clause 3 on an additional clause of the 1980 Constitution, laws made by the above council did not require examination for violation of the constitution. The 1980 Constitution can be badly evaluated by these reasons. In a nutshell, though long term hold of power was no longer possible, there were no effective means to control presidential authority. For these reasons, I see the Cheon, Du- Hwan's administration as the continuation of military and dictatorship power of the Constitution for Revitalizing Reform.

전자주민증 도입의 주민등록법 개정안에 대한 헌법적 평가 -정부 제출안의 문제점과 개선방안을 중심으로-

이희훈 ( Hie Houn Lee ) 연세대학교 법학연구원 2012 法學硏究 Vol.22 No.3

정부는 최근 국회에 현행 주민등록증의 위조나 변조에 의한 각종 범죄의 방지와 주민등록증에 기재되어 있는 개인정보의 노출을 최소화하여 개인정보자기 결정권의 침해 가능성을 줄이기 위해 전자주민증 도입의 주민등록법 개정안을 제출했었던바, 이 법안의 입법 목적은 정당하다고 사료된다. 그러나 동 개정안의 제24조 제2항 제1호부터 제12호까지 전자신분증의 겉표면과 IC칩 안에 각각 수록되는 개인정보가 무엇인지를 전혀 규정하고 있지 않아 개인정보자기결정권을 침해할 수 있는 문제점이 있다. 그리고 동 개정안의 제24조 제2항 제7호에서 막연히 ‘지문’이라고만 규정되어 있어 전자주민증에 수록될 지문의 개수를 명확히 알 수 없으므로 명확성의 원칙에 위반될 문제점이 있다. 또한 동 개정안의 제24조 제4항에서 전자적 수록의 방법과 전자적으로 수록된 정보의 타인에 대한 제공 또는 열람 방법, 보안조치의 방법에 대해 직접 어느 정도 구체적으로 규정한 후에 대통령령에 위임하지 않고 그러한 방법모두를 대통령령에 전면적·포괄적으로 위임함으로써 법률유보의 원칙과 포괄위임금지의 원칙에 위반될 수 있는 문제점이 있다. 따라서 향후 동 개정안의 제24조 제2항은 제1호부터 제12호 중에서 전자신분증의 겉표면과 IC칩 안에 수록되는 개인정보가 각각 어떻게 나누어지는지와 동 개정안의 제24조 제2항 제7호에서 필요로 하는 지문의 개수가 몇 개인지를 명확히 밝혀서 규정되어야 할 것이다. 그리고 향후 동 개정안 제24조 제4항은 전자적 수록의 방법과 전자적으로 수록된 정보의 타인에 대한 제공 또는 열람방법, 보안조치의 방법에 대해 모법인 동 개정안 제24조 제4항에서 직접 어느정도 구체적으로 밝혀서 규정한 후에 대통령령에 위임을 하는 것으로 규정되어야 할 것이다. The government submitted reform bill of a resident registration act for the Introduction of the electronic resident registration cards to the National Assembly recently. A purpose of a legislation of this reform bill is going to prevent a crime occurred by forgery and alteration of a resident registration cards. And a purpose of a legislation of this reform bill is the maximum decrease does personal information recorded on a resident registration cards, and it restrains an infringement of the right to self-determination of private information. Therefore, a purpose of a legislation of this reform bill is proper. However, there is the problem that can infringe the right to self-determination of private information in number 1-12, clause 2, section 24 of this reform bill. The reason is because it does not divide it precisely what kind of item is recorded within the surface and an IC chip of an electronic resident registration cards in number 1-12, clause 2, section 24 of this reform bill. And, number 7, clause 2, section 24 of this reform bill has a problem violated a void for vagueness doctrine. The reason is because it does not definitely understand the number of a fingerprint recorded in an electronic resident registration cards from this rule. Moreover, clause 4, section 24 of this reform bill has the problem that it can be violated principle of legal saving and principle of forbidden general delegation. The reason is because this rule delegated a method of electronic recording and an offer for another person of information recorded electronically or a reading method and a method of a preservation step to the all the presidential decree comprehensively without directly concrete prescribing it. Therefore, it must be prescribed definitely what is recorded within the surface and an IC chip of an electronic resident registration cards in personal information as for number 1-12, clause 2, section 24 of this reform bill in future. And, clause 2, section 24 of this reform bill must be prescribed definitely the number of a fingerprint to need in future. Besides, clause 4, section 24 of this reform bill must be prescribed to delegate to the presidential decree after having prescribed it concretely for a method of electronic recording and an offer for another person of information recorded electronically or a reading method and a method of a preservation step in future.

서리태 발효추출물이 탈색을 통해 손상된 모발에 미치는 영향

정희훈 ( Heehoon Jung ),신민규 ( Min Kyu Shin ),이수열 ( Su Yel Lee ),이상린 ( Sang Rin Lee ),김무성 ( Moo Sung Kim ) 대한화장품학회 2017 대한화장품학회지 Vol.43 No.2

본 연구에서는 서리태 발효추출물의 모발보호효과를 확인하기 위한 연구를 수행하였다. 화학적 산화를 통해 손상된 모발을 준비한 뒤 서리태 발효추출물을 처리하였을 때 모발의 형태학적 특성, 인장강도, 구성성분의 변화를 분석하여 비교하였다. 그 결과 모발에 산화제를 처리하였을 때, 표피의 큐티클 층이 손상되고 모발의 인장강도가 14.32 ± 0.83 g/㎠에서 12.32 ± 0.79 g/㎠로 감소되었음을 확인하였다. FT-IR 분석결과 산화제를 처리한 모발은 버진 헤어에 비하여 1,077, 1,041, 801 cm^-1에 해당하는 피크가 증가하였으며, 이를 통해 케라틴 단백질 간의 이황화 결합에 필수적인 시스테인이 산화되는 것을 확인하였다. 반면, 손상된 모발에 서리태발효추출물을 처리한 경우에는 표피의 큐티클 층의 틈이 메워지고, 인장강도가 14.27 ± 0.96 g/㎠로 회복되었으며, 모발의 성분 중 시스테인의 산화물 비율이 감소하는 것으로 분석되었다. 이러한 결과들을 통해 발효 서리태 추출물은 산화제에 의해 손상된 모발의 보호 소재로 연구될 가치가 있는 것으로 기대된다. This study was carried out to investigate the hair protection effect of fermented black soybean extracts. The morphological characteristics, tensile strength and constitutional changes of the hair were analyzed and compared when the hair was chemically oxidized and then treated with fermented black soybean extract. As a result, treatment of oxidizing agent on virgin hair caused damage on the cuticle layer of the epidermis and decreased in tensile strength of hair from 14.32 ± 0.83 g/㎠ to 12.32 ± 0.79 g/㎠. FT-IR analysis showed the peaks at 1,077, 1,041, and 801 cm^-1 of the hair treated with oxidizing agent were increased compared to peak values of virgin hair, indicating that cystein in hair was decreased which is crucial to disulfide bond between keratin. On the other hand, when the damaged hair is treated with the fermented black soybean extract, cracks in the cuticle layer of the epidermis were filled, tensile strength was restored to 14.27 ± 0.96 g/㎠ and the ratio of oxidized cysteine in hair was decreased. These results suggest that the fermented black soybean extract is worthy of further investigation as a protective material for hair damaged by oxidizing agents.

취재원 비닉권과 취재원 보호 입법에 대한 연구

이희훈 ( Hie Houn Lee ) 연세대학교 법학연구원 2008 法學硏究 Vol.18 No.4

Freedom of press of mass media is a basic right guaranteed by Article 21 of the Korean Constitutional law that is necessary in realizing the people` right to know and democracy. For mass media to faithfully perform its given role, collection of plentiful and trustworthy information is absolutely necessary. An intimate trust relationship between mass media and news source must be premised to guarantee that the identity of the news source will not be made known to public by mass media. If the identity of the news source is opened to public, the news source may cause difficulty in realizing Freedom of speech and press the de facto the Constitutional law, the people` right to know, and democracy by hesitating to provide important information to mass media because of social and economic disadvantages that may arouse. Therefore, it is appropriate for the Constitutional law to guarantee the Journalist`s Privilege of Protecting Confidential the News Source, or the right of the news source to refuse to make known one`s identity to news reporters. For such reasons, The Journalist`s Privilege of Protecting Confidential the News Source is a right that must be guaranteed in order to realize freedom of news gathering. Since freedom of news gathering belongs to the content on freedom of press under Article 21 Freedom of speech and the press in the Constitutional law, it is reasonable to consider the Journalist`s Privilege of Protecting Confidential the News Source as the basic right that belongs to Freedom of speech and the press in Article 21 of the Constitutional law. In addition, the Journalist`s Privilege of Protecting Confidential the News Source must be broadly guaranteed for all legal procedures including civil and criminal procedures in courts and investigation procedures and so on such as seizure or search by the police or prosecutors. The Journalist`s Privilege of Protecting Confidential the News Source is materialized in forms of `right to refuse to testify`, `right to refuse submission of data`, and `immunity right from search and seizure`. Also, the subject of the Journalist`s Privilege of Protecting Confidential the News Source is a `media reporter`, and the scope of `media reporter` must be limited to `a person professionally working in officially recognized regular publications or broadcast or had been engaged in such profession before` to exclude unrecognized media such as media related to the internet. Object of protection by the Journalist`s Privilege of Protecting Confidential the News Source is the entire matter on possibility of revelation of the identity of the news source. On one hand, while criminal punishments are given in accordance to Articles 151, 152 and 162 of Criminal Procedure Law by interpretation the de facto the current Law in our nation if a news reporter refuses to testify at a court, it is most appropriate to recognize the right of news reporters to argue for the security of news source in a civil action because news reporters belong to the news source under `confidence of occupation` regulated in Article 315 Clause 1 Provision 2 of Civil Procedure Law. Meanwhile, 32 states of the Unites States of America currently recognize the Journalist`s Privilege of Protecting Confidential the News Source by regulating the `Shield Law`, and Germany also recognizes the Journalist`s Privilege of Protecting Confidential the News Source in Article 53 Clause 1 Provision 4 of Federal Criminal Procedural Law and in Article 383 Clause 1 Provision 5 of Federal Civil Proceedings Law of Germany. However, while the Supreme Court of the United States is negative in recognizing the Journalist`s Privilege of Protecting Confidential the News Source for criminal procedural cases, it recognized the security for civil proceedings cases. In addition, the Federal Constitutional Court of Germany and the Supreme Court of Japan also recognized the Journalist`s Privilege of Protecting Confidential the News Source. Since our nation will also need to recognize the Journalist`s Privilege of Protecting Confidential the News Source in the future by enacting a related law under the premise that the Journalist`s Privilege of Protecting Confidential the News Source is guaranteed on a consitutional level, it would be appropriate to decide the limitation on the scope of the security without breaking the principle of balance for guarantee of national security, maintenance of order, or public welfare stated in Article 37 Clause 2 of the Constitutional law.

위헌정당해산심판제도에 대한 헌법적 연구

이희훈(Lee Hie Houn) 유럽헌법학회 2019 유럽헌법연구 Vol.0 No.28

정부는 원칙적으로 정당의 목적이나 활동이 우리나라의 민주적 기본질서를 침해하여, 이로부터 방어적 민주주의의 이념을 실현해서 사전 예방적으로 헌법과 우리나라를 보호하기 위해서 헌법재판소에 위헌정당해산심판을 제소할 수 있는 재량권을 가지고 있다. 그러나 해당 위헌정당의 민주적 기본질서에 실질적인 해악을 끼칠 수 있는 구체적 위험성이 초래되는 경우에는 이러한 정부의 재량권은 축소되어 헌법재판소에 위헌정당해산심판을 제소해야 하는 것으로 보는 것이 타당하다. 다만 정부가 이러한 위헌정당해산심판을 제소할 때에는 야당을 탄압하는 수단으로 악용되지 않도록 매우 엄격한 요건 하에서만 인정되어야 한다. 이렇듯 매우 엄격한 요건 하에 인정되는 민주적 기본질서를 보호하여 헌법과 국가를 보호하기 위한 위헌정당해산심판제도의 헌법적 본질과 실효성을 높이기 위해서 헌법재판소에 의하여 위헌정당해산으로 결정된 해당 국회의원직을 비례대표이든 지역구이든 상관없이 모두 상실되는 것으로 보는 것이 타당하다. 향후 우리나라는 독일처럼 위헌정당해산심판제도의 헌법적 본질과 실효성을 위해서 헌법재판소에 의하여 위헌정당으로 해산되는 것이 결정되었을 경우에 해당 정당 소속의 국회의원직의 상실에 대한 명시적 규정을 신설하는 것이 바람직하다. In principle, the government has the discretion to file an appeal against the Constitutional Court to protect the Constitution and the nation in a proactive manner by realizing the ideology of defensive democracy, as the purpose or activities of a political party infringe on the democratic basic order of the country. However, if there is a specific risk that could actually harm the democratic basic order of the unconstitutional party, it is reasonable to assume that such a government’s discretion should be reduced to file a lawsuit against the Constitutional Court. However, the government should be recognized only under very strict conditions so that it will not be abused as a means of suppressing opposition parties when it file a lawsuit against such unconstitutional parties. In order to protect the democratic basic order recognized under such very strict requirements and enhance the constitutional nature and effectiveness of the unconstitutional party disbandment system to protect the Constitution and the nation, it is reasonable to regard all the relevant parliamentary posts determined by the Constitutional Court as being lost, regardless of whether they are proportional representatives or local constituencies. In the future, Korea should establish an explicit regulation on the loss of parliamentary posts belonging to the party if it is decided to be disbanded by the Constitutional Court for the sake of the constitutional nature and effectiveness of the system of disbanding as Germany did.

주민등록법상 지문날인제도의 위헌성에 대한 연구 - 헌법재판소 2005. 5. 26, 99헌마513·2004헌마190(병합)결정에 대한 비판을 중심으로 -

이희훈 ( Lee Hie-houn ) 한국외국어대학교 법학연구소 2008 외법논집 Vol.31 No.-

While the nationals of the Republic of Korea, when reaching age 17, are required to seal the fingerprints of ten fingers mandatorily to issue resident registration certificate regardless of the individual's no matter who they are, fingerprint belongs to a bio information of an individual belongs among confidential and important personal information. Therefore, they are liable to be under restriction on right to self determination of private information, a right which the subject of the information shall determine voluntarily on release and use of personal information by the Residents Registration Law Fingerprint System. However, such restriction, unlike what was manifested by majority of opinions in Constitutional Court on May 26, 2005, is respectively in violation of principle of legal saving and principle of proportion for the following reasons, and thus the Fingerprint System of Residents Registration is an unconstitutional system that infringes personal information self determination right etc. In other words, Fingerprint System by Residents Registration Law, unlike what was suggested by majority opinions of Constitutional Court on May 26, 2005, is against the principle of forbidden general delegation in that the requirement of fingerprint sealing of ten fingers which is specified as intrinsic and basic provision in Residents Registration Law Clause 5 of Article 8 of 17 as of May 26, 2005 is stipulate not directly by Residents Registration Law, a mother law but in No. 30 of an annexed paper by Residents Registration Law Enforcement Decree Clause 2 of Article 33 as of May 26, 2005, a subordinate law. In addition, this requirement is against the principle of legal saving in view of constitutional law in the point that this requirement is found no where in the regulation of storing of fingerprint information by National Police Agency Commissioner General, computerized database of fingerprint stored by National Police Agency Commissioner General, or regulation on usage for criminal investigation purpose. Furthermore, use of fingerprint information of ten fingers of all the nationals of no less than age 17 with no criminal history collected by Residents Registration. Law Fingerprint System may not be deemed at least as infringement of personal information self determination right, but abuse of such information in monitoring behavior of particular individuals under the excuse to general criminal prevention or criminal information collection after all contradicts the principle of proportion by losing the balance of the benefit and protection of the law.

공직선거법상 수형자의 선거권 제한에 대한 헌법적 고찰

이희훈 ( Hie Houn Lee ) 건국대학교 법학연구소 2013 一鑑法學 Vol.0 No.24

끼워맞춤, 예압 및 온도 조건을 고려한 동력 인출 장치에 적용되는 베어링 해석

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