헌법상 기본의무의 실현

강일신(Kang, Il-Shin) 한국비교공법학회 2014 공법학연구 Vol.15 No.1

사법심사기준으로서 실제적 조화 원칙

康一信 ( Kang Ilshin ) 법조협회 2019 법조 Vol.68 No.5

When two constitutional norms with equal validity conflict in a specific circumstance, an appropriate methodology of solving that conflict is needed to recognize the validity of both of them. In situations of conflict of norms, the notion that emerged with the aim of refraining from an all-or-nothing style choice to abandon one of them is so-called the principle of practical concordance(Prinzip der praktischen Konkordanz). The principle means that if valid two legal interests conflict and collide, one should not sacrifice one of them through abstract balancing. In this situation, one should try to find equilibrium proportionally on a case-by-case basis. This principle that is a conception developed in Germany has been widely accepted in our constitutional practice and constitutional jurisprudence. The Constitutional Court and the Supreme Court refer to the principle in their decisions and rulings, and the constitutional academia also uses the principle for a constitutional interpretation or a solution of fundamental rights conflicts. There is a consensus as to whether the principle is a goal that should be considered in the event of a conflict between constitutional norms. Nonetheless, there still remains considerable ambiguity as to the specific content of the principle as a judicial review standard and its relationship with the principle of proportionality. This article focuses on the fact that the principle of practical concordance is applied in the constitutionality review of a legislation that resolves fundamental rights conflicts in our constitutional practice. Firstly, it draws implications from the development and use of the principle in Germany. (Ⅱ) Then, it reviews ways of using the principle in our constitutional practice and constitutional academia. (Ⅲ) Finally, it suggests specific elements to be considered in applying the principle in judicial review. (Ⅳ)

맥코믹의 정합성이론에 대한 비판적 고찰

강일신 ( Ilshin Kang ) 영산대학교 법률연구소 2014 영산법률논총 Vol.11 No.1

The urgent problem of the contemporary legal theory is not to be fallen into the deterministic trap in the discovery theory and nihilistic trap contained in the creation theory but to maintain ‘stability’ of the discovered theory and ‘justice’ of the creation theory. The coherence theories in the contemporary legal theory have been suggested as responses for theses request of legal practice. MacCormick attempted to include coherence suggested as a philosophical concept into the legal reasoning and to redefine it as a legal concept. The coherence theory of MacCormick which is based on a philosophical epistemological model, was developed in order to escape criticism directed to the judicial discretion of Hart. In the theoretical system of MacCormick, coherence plays an important role in controlling the judicial discretion rather than ultimate justification principle of legal reasoning. Despite its limits, such discussion of legal theoretical coherence of MacCormick could be evaluated as an important achievement of legal theory as it paved a way of extensive discussion of the concept of coherence in the area of legal theory.

헌법상 기본의무의 개념

강일신 ( Ilshin Kang ) 연세법학회 2015 연세법학 Vol.25 No.-

In this article, the writer raises the following question: “what is basic duty?” To answer this question, the writer, analyzes the conceptual elements of basic duty that are applicable to the constitutional interpretations and the constitutional politics. Firstly, from the formal perspective, basic duty is a “burden to the community, based on the Constitution, that the sovereign citizens bear.” In contrast, from the substantive perspective, basic duty is a “physical or material contribution to the community that the sovereign citizens make directly, with no counter-benefits, for indispensable constitutional public interests.” Synthetically, basic duty refers to a “burden to the community, based on the Constitution, that the sovereign citizens bear directly, with no counter-benefits, for indispensable constitutional public interests.” Categorized according to the contents of contribution, basic duties in the Korean Constitution are as in the following: ① the duty of Paying taxes and the duty of national defense as pre-conditional duties that make a constitutional state exist on itself; ② the duty of voting, the duty of serving on jury, and the duty of taking honorable offices as participatory ones that make a democratic constitutional state function; ③ the duty of compulsory education, the duty of working, and the duty of rearing their children that provide a personal and material foundation for the existence of community through facilitating self-standing of the community members; ④ the duty of exercising property rights in conformance to the public welfare and the duty of protection of the environment as obligations for co-existence with the other fellow citizens. This research will be expected to provide a useful test for a further research through its distinctiveness.

수자원의 법적 성격에 관한 고찰

강일신 ( Il Shin Kang ) 한국수자원공사(K-water) 2012 저널 물 정책·경제 Vol.19 No.-

Because the water rights system and the management of water resources are basically performed by laws, the legal academia has to clarify the nature of water resources from legal perspectives. However, little interest has been given to it. Based on the critical mind on this academic neglect, this article analyzes water resources into the three legal characters as follows. First, water resources are natural resources that are the object of state management. And the use, the exploitation, and the development of water resources are performed under the state permission, according to Article 120 of the Constitution. Second, water resources as common resources are the public property originated from the Roman law, res communes. In this concept, the ownership of water resources can be vested in neither the individuals nor the state. They are the subject to all members of the state. Therefore, the state power as a trustee of water resources is limited only to manage them. Third, in the sense of public law, water resources are public good(Offentliche Sache). Therefore, water resources, regardless of surface water or ground water, are the properties dedicated to public purpose. And individuals can use them legitimately under the administrative permission.

공론장 법리의 확장 - 선출직 공직자들의 소셜 미디어 활용과 관련하여 -

강일신 ( Kang Ilshin ) 단국대학교 법학연구소 2018 법학논총 Vol.42 No.4

Certain expressive activities require an access to places of expression. Especially, for citizens who can not access the mass media to deliver their messages, the places of expression have a great significance. These places are where we can communicate with other fellow citizens, and public opinion is formed through that communication. The United States Supreme Court called these spaces public fora, where the government must ensure citizens’ expressive activities and allow them to freely express what they want to say without exclusion or discrimination based on a viewpoint. Unlike the shrinking of public fora in real space, the internet is attracting attention with its role of expanding the scope of public fora. In particular, when politicians use social media like Twitter and Facebook as channels for policy publishing, opinion gathering, and public opinion formation, social media sites as an interactive place function as a venue where citizens can petition to elected officials, criticize government policies, and exchange opinions one another. Accordingly, the social media sites which is essentially private space, are paradoxically becoming public space. Therefore, guaranteeing expressive activities there is one of the new challenges of constitutional jurisprudence. With reference to the US case, this article examines whether the social media, when used by elected officials, constitute a public forum. If so, it further examines the limitations of elected officials’ power to block or censor expressions of constituents based on a political point of view.

지방자치와 사법심사 : 사법심사기준의 실질화 필요성에 관한 고찰

강일신(Kang, Ilshin) 세계헌법학회 한국학회 2021 세계헌법연구 Vol.27 No.2

지방자치는 민주주주의, 권력분립, 기본권실현에 기여하는 중요한 헌법적 제도이다. 지방자치의 활성화는 종국에는 정치과정을 통해 달성해야 하는 ‘정치적’ 과제임이 분명하지만, 헌법을 전향적으로 해석하고 그러한 헌법해석을 현실에 옮겨놓음으로써 달성될 수도 있는 ‘헌법적’ 과제이기도 하다. 무엇보다 헌법개정과 법률개정을 통한 지방자치의 활성화가 지지부진한 현실에서는 유권적 헌법해석기관으로서 헌법재판소의 역할이 중요한 의미를 갖는다. 이 글에서는 헌법재판소의 지방자치에 대한 이해방식, 그 중에서도 사법심사기준으로서 본질적 내용 침해 금지 판단을 비판적으로 고찰하고, 헌법상 지방자치제도가 추구하는 이상으로서 보충성원칙과 그 위반 여부 판단기준으로서 비례성원칙간 관계를 검토한후, 지방자치관련 사법심사기준을 실질화할 수 있는 방안을 제언하였다. 결론적으로, 이 글에서는 헌법재판소는 입법형성권을 존중하면서도 본질적 내용 침해 판단이라는 척도를 적용하는 것을 포기하고 비례성원칙을 적용하면서도 심사강도를 차별화는 방식으로 지방자치권 침해 여부 판단을 다변화할 것을 제언하였다. The local self-government system is an important constitutional institution that contributes to democracy, separation of powers, and the realization of basic rights. The revitalization of local autonomy is obviously a ‘political’ task to be achieved through the political process in the end, but it is also a ‘constitutional’ task that can be achieved by progressively interpreting the Constitution and putting it into reality. Above all, the role of the Constitutional Court as an authoritative constitutional interpretation agency has an important meaning in a reality where the realization of local autonomy through constitutional and legal reforms has been delayed. This article firstly critically examines the Constitutional Court’s understanding of local self-government system, especially the prohibition of infringing essential content as a criterion for judicial review. Then it clarifies the relationship between the principle of subsidiarity as an ideal of the local self-government system in the Constitution and the principle of proportionality as a criterion for judging whether the subsidiarity principle is violated. Finally, it suggests a way to materialize the judicial review standards related to local self-government. In conclusion, this article suggests that the Constitutional Court diversify its judicial review standards by differentiating the intensity of review while applying the principle of proportionality. It is to respect the power to legislative formation.

헌법선례의 변경

강일신 ( Kang Ilshin ) 연세대학교 법학연구원 2018 法學硏究 Vol.28 No.4

From the beginning of its establishment, the Constitutional Court has conducted precedent application argumentation in such a way as to present precedent decisions and to determine the need to overrule the decision. On the other hand, in the case of overruling with much greater infringement of reliance interest, in addition to the explanation of the new constitutional interpretation and application, only the intention to change it to the extent that it conflicts with the existing precedent has been described. The Court did not provide any concrete grounds for the justification of the overruling, such as changes in social background or legal principles, which had been the basis of precedent, nor did it conduct an argumentation for the need to overrule it. This practice is not appropriate in light of the citizens’ legitimate expectation and violates the request of justification on the exercise of judicial power. Therefore, if the Court wishes to depart from the precedent, it shall carry out, at least, a minimum level of legal argumentation on its grounds and necessity. Firstly, This article suggests the concept of constitutional precedent and classifies its types. It reconsiders the stare decisis as a burden of argumentation (Ⅱ). Next, It examines the justification grounds and methodology that an overruling of precedent should meet (III). Finally, it proposes a complementary direction regarding the argumentative method of overruling precedents of the Court (Ⅳ).

감사원 감사의 본질과 기능

강일신(Kang Ilshin) 한국부패학회 2014 한국부패학회보 Vol.19 No.4

감사의 개념, 본질, 기능에 대한 헌법이론적 해명이 없다면, 감사원 감사를 둘러싼 제도개선 논의는 공전을 면하기 어렵다. 본고는 감사제도의 성급한 개선 이전에 감사제도의 본질에 대한 이해가 선행될 필요가 있음을 전제하고, 헌법학의 차원에서 감사의 개념, 본질, 기능 등을 재검토함으로써, 제도개혁의 방향성을 제시하고, 감사원에 관한 논의의 헌법화를 시도한다. 구체적으로 본고는 감사원의 구성․운영 원리로 민주성, 전 문성, 독립성을 제시하였다. 한편, 현대적․기능적 권력분립원칙하에서 감사원의 역할을 감시기관, 조력기관, 공공감사선도기관으로 나누어 파악하였다. 마지막으로, 이러한 감사의 본질․기능 이해에 기초하여, 본고는 정책감사를 감사원 감사의 내용에 포함시키면서, 감사원의 직무범위 중 순수직무감찰을 제외할 필요성을 제언하였다. There is argument about institutional improvement of audit and inspection (hereinafter “audit”) by the Board of Audit and Inspection of Korea (hereinafter “the Board”). It, however, would be difficult to avoid going round and round in circles if there is no explanation for the audit’s concept, nature and functions based on constitutional theories. Based upon the premise that there should be understanding of the nature of the audit system in advance rather than there is a hasty reformation of the system, this article reconsiders the audit’s concept, nature, functions, etc from the perspective of the constitutional jurisprudence to signpost the institutional improvement and to endeavor constitutionalization of the argument regarding the Board. To be concrete, it proposes the principle of democracy, professionalism, and independence as the Board’s constituting and operational principle. Then, it analyzes the Board’s role as a supervisor, a consultant, or a leading public auditor under the modern and functional principle of division of powers. Lastly, based on the understanding of the audit’s nature and function, it proposes that the Board’s audit includes policy auditing, and pure inspection of duties should be excluded among the call of duties of the Board.

단체자치, 그 의미와 한계 : G. Teubner 사회헌법론을 중심으로

강일신 ( Kang Ilshin ) 법과사회이론학회(구 법과사회이론연구회) 2018 법과 사회 Vol.0 No.57

단체자치는 단체 설립, 구성, 운영에 관한 규범을 자율적으로 결정하고, 그 자치규범에 따라 활동하는 것을 뜻한다. 단체자치는 국가권력으부터 단체의 자율성, 나아가 사회내 다원성, 역동성을 보호하는 수단이다. 반면, 단체자치가 강조될수록 그 단체가 갖는 고유성을 내부구성원에게 강요하고, 사회권력성을 획득한 단체는 자기논리를 단체외부에까지 관철시키는 경향이 발생한다. 이에, 단체자치에 대한 한계는 때로는 기본권의 수평효 법리를 승인하는 작업을 통해, 때로는 단체내부에 민주적 제도들을 이식하는 작업을 통해 수행되었다. 관련하여, 토이브너는 국민국가를 넘어서는 사회헌법 개념에 기초하여, 초국적기업들이 세계화라는 맥락속에서 정립하는 행동강령에서 새로운 법현상을 발견하고, 사회적 하부체계의 자율성과 공법적 질서가 맺는 관계에 대해 전향적인 이해방식을 제공한다. 본 논문은 사회헌법과 관련한 토이브너의 이해에 기초하여, 단체자치의 의미, 한계를 재성찰하고, 그 공법이론적 함의를 도출하는 것을 목적으로 한다. Collective autonomy means that an private organization autonomously determines the norms for the establishment, composition and operation of itself and acts in accordance with these self-government norms. Collective autonomy is a means of protecting the autonomy of an private organization from the state power, and also the pluralism in society. On the other hand, if the autonomy of the group is emphasized, an private organization imposes the inherent color of the group on internal members and an private organization which acquires social power tends to impose its own logic outside the organization. Thus, the limitations on collective autonomy is sometimes carried out through transposing the democratic institutions in the private organization, and sometimes through recognizing the horizontal effects of constitutional rights. In relation to this subject, Gunther Teubner, on the basis of the constitutional concept beyond the nation state, finds constitutional phenomena in the code of conduct established by the transnational corporations and provides a prospective understanding on the relationship between collective autonomy and its relations to public law order. The purpose of this article is to revisit the meaning and limit of group autonomy based on Teubner’s theory of societal constitutionalism and to draw its theoretical implications on public law.