가상공간에 있어서의 표현의 자유

류시조 한국헌법학회 1999 憲法學硏究 Vol.5 No.1

이탈리아헌법의 특징과 통치구조

류시조 釜山外國語大學校 比較法硏究所 2011 比較法學 Vol.22 No.-

The italian constitution also has all the typical characters as one of the modern constitution. Especially, we can point out several features as the character of italian state in it's constitution. Namely the character of italian state is as followings : a democratic republic based on labor, social state, acknowledgment of special status of catholic church, transformational parliamentary government. And the italian ruling system is fundamentally parliamentary government. Although the italian ruling system is also a sort of a french-style double executive in which vest substantially the head of state with authority, the italian ruling system is not similar to the french ruling system. In any way, we can call the italian ruling system a transformational parliamentary government. The president of Italia is head of state and represents the unity of the nation, and may send messages to parliament, authorizes the government's legislative initiatives, promulgates laws and issues decrees with the force of law as well as government regulations, call a referendum when provided for by the constitution, etc. In this wise, the italian president has not a nominal power, but a substantial power as a head of state. And the prime minister conducts and is responsible for the general policy of the government. He ensures the unity of general political and administrative policies, promoting and coordinating the activities of the ministers. And the ministers are jointly responsible for decisions of the council of ministers and individually for those of their ministries. In this point, we can call the italian parliamentary system a responsibility system of prime minister.

憲法의 基本原理로서 反獨占原理

류시조 부산 외국어 대학교 2001 外大論叢 Vol.22 No.1

This paper aims to verify the principle of anti-monopolism as a fundamental principle of constitutional law.For this purpose, we have to understand the politico-social character of monopolism and antimonopolism in their historical stages, and to demonstrate the character of their ideology, and to examine how they are realized in constitutional law.We can find the following facts; The monopolistic and antimonopolistic situations were not only a social phenomenon in modern society, but were also endowed with a politico-social character in each historical stages of shaping and developing bourgeois society from the middle ages, the modern age and the present age.The monopoly in each of these historical stages has a specific character as part of the ideology of feudalism and absolutism and capitalism.And the antimonopoly as an opposite conception of the monopoly has the character of economic freedom, political freedom, social justice in each of these historical stages.The antimonopolism that has a character of protesting or shaping conception for civil society also has become a constitutionally very important ideology in the modern age. The antimonopoly stands as a symbol of liberalism and individualism.With social change, the ideological character of the antimonopoly has become a fundamental principle of constitutional thought, accordingly as modem civil constitutional thinking has accepted the ideology of the antimonopoly.The principle of the antimonopoly have come into close connection with other existing fundamental principles of constitutional law.We can not find any contradiction between the principle of antimonopolism and other fundamental principles of constitutional thought.Therefore the antimonopolistic principle is very important in any analysis of the structure and function of modern constitutional thinking, to comprehend and interpret the problems of modem constitutional thought.We can also judge the antimonopoly principle as fundamental from the following facts; Namely, the nature of freedom has an antimonopolistic character, expecially today the right of existence has the character of an antimonopolistic right.And democracy itself has also an antimonopolistic character, the principle of separation of powers is an institutional characteristic of antimonopoly.The free-market economy has an antimonopolistic nature, but its dual character promoted monopolistic phenomena.So, we have to revise the principles of a free market economy, the revised free market economy can be called a social market economy.Today the social market economic order is the economic order of the modern state that fulfills an antimonopolistic economic policy for realizing social justice.As mentioned above, in conclusion the principle of antimonopoly is a constitutional principle that protects the freedom and equality of human beings against the monopoly and concentration of all political social economical power, its essence is the guarantee of fundamental rights and the principle of separation of power, the principle of national sovereignty, a social economic policy to ensure social justice, etc.

발간사

류시조 부산외국어대학교 비교법연구소 2011 比較法學 Vol.22 No.-

인도연방헌법의 통치구조와 그 특징

류시조 釜山外國語大學校 比較法硏究所 2004 比較法學 Vol.15 No.-

This paper aims to study a ruling system and it’s characteristic of Indian federal constitution. We can find the following facts in Indian constitution.; The Indian constitution was passed by the Constituent Assembly on 26 Nov 1949 and is fully applicable since 26 Jan 1950. Since 1950, 78th amendment was taken in 30 Aug.1995. India is a sovereign socialist secular federal democratic republic of 28 states and seven Union Territories. The executive power ofthe Union shall be vested in the President. There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice. In spite of parliamentary govemment, lndia has a vice-president to be ex-officio Chairman of the Council of States and to act as President or to discharge his functions during casual vacancies in the office, or during the absence, of President. Each state is administered by a Govemor appointed by the President while each Union Territory is administered by the President through a Minister. And the bicameral parliament is composed of the Council of States(Rajya Sabha) and the House of the People(Lok Sabha). The president has power to nominate 12 persons of The Council of States, having special knowledge or practical experience in respect of literature, art, science and social service, and to exercise the executive power of the Union and the supreme command of the defence forces of the Union, to promulgate An Ordinance, etc. 인도의 헌법개정은 헌법개정법률의 형식으로 이루어지며,헌법개정법률은 양원이 모두 제출할 수 있고,개정안이 양원의 재적의원 과반수의 찬성과 재적의원 2/3의 출석과 투표로 의결되며,대통령의 승인을 필요로 한다. 단 개정안이 대통령선거,연방 및 주정부의 집행권범위,연방사법권 둥과 같이 정부구조에 관한 것일 때에는 대통령의 승인에 앞서 각 주 의회의 1/2이상의 비준을 얻어야 한다(제 368조 2항). 인도헌법은 1950년 제정된 이래 1996년까지 79번째 개정되었으며 헌법개정에 있어서 미국과 같은 나라들과는 달리 반드시 각 주의 비준이나 동의 절차를 필요로 하지 않아 개정절차가 상대적으로 용의하다. 이와 같이 인도 헌법의 軟性性은 일반 법률과 같이 구체적이고 상세한 내용을 방대하게 수록한 헌법의 내용이 그 만큼 상황변화에 따른 개정의 필요성도 많았을 것임이므로 헌법개정절차가 지나치게 엄격하면 인도와 같이 이질성과 다양성이 많은 사회에 있어서 규범적 통일성을 기하기 매우 어려웠을 것이다. 오늘날 인도가 지구상에서 비교적 정치적 갈등과 혼란을 극복하면서 민주적인 정권교체를 성공적으로 이루어 나가는 몇 안되는 나라인 점을 생각하면 이러한 성공의 요체 중의 하나가 인도헌법이 연성헌법이라고 하는 특성을 잘 활용하고 있다고 하는 점이다.

憲法上 民族國家의 規範的 性格

류시조 부산 외국어 대학교 2004 外大論叢 Vol.28 No.-

Korean constitution has been based on the principle of the Nation State. Korea as a nation state was composed of Korean Nation. Korean nation evolved out of natural nation in immemorial times into cultural nation and political nation. As cultural nation, Korean people has it,s own traditional and national culture. A national culture in Korea brought up Korean nationalism. And korean nationalism was developed from cultural nationalism to political nationalism. In the end, Korean nationalism contributed the foundation of Republic of Korea Government born of the March First Independence Movement of 1919. But after Independence Korea separated two state, south and north. And political nationalism in Korea was not completed yet. But nationalism in Korean Constitution was formed of the important principle of Constitution. In korean modern history, korean nationalism had contributed to the foundation of Korea and had became the national ideal envisioned on the founding of a country. So in the preamble of our constitution, constituion declare as following; We the people of Korea, proud of a resplendent history and traditions dating from time immemorial, upholding the cause of the Provisional Republic of Korea Government born of the March First Independence Movement of 1919 and the democratic ideals of the April Nineteenth Uprising of 1960 against injustice, having assumed the mission of democratic reform and peaceful unification of our homeland and having determined to consolidate national unity with Justice, humanitarianism and brotherly love. In spite of dispute on the character of nation state of Korean Constitution, We can not deny the nationalism in korean constitution and character of nation state. The principle of nation state of our korean constitution is a free democratic nation state. And the character of a free democratic nation state involve character of open nation state, peaceful nation state, cultural nation state.

법치주의의 전개와 현대적 과제 -법치주의에 있어서 법 인격성 문제를 중심으로

류시조 부산외국어대학교 비교법연구소 2000 比較法學 Vol.11 No.-

配分參與權의 槪念과 法的 性格에 관한 一考察

류시조 釜山外國語大學校 1998 外大論叢 Vol.18 No.3

The purpose of this study is to research the conceptual import of the right of the participation in distribution(Teilhaberecht) and it's legal character. The right on the participation oin distribution would be called a social fundamental right or social right. A social fundamental right is the right to claim a presentation about goods and acts against the state. Today, the individual rights of liberty ends to have not a full effect of protecting real liberty, because citizens have been deprived of the social preconditions of it's rights and lost the capability of possessing it's own rights. Therefore the liberty is't present and real for citizen in these circumstances. From now on, it is necessary to reconsider the meanings and legal character of the right of liberty and empathize the beneficiary character on the rights of liberty. This study aims to deduce the right of the participation in distribution from the right of liberty. But our purpose is sometimes criticized in legal theory that the right of liberty is a negative-defensive right and the other hand the right on the participation in distribution is a positive right. So some portion of scholar denies the concept of the right on the paricipation in distribution. In this paper, we'd like to reexplain the right of liberty and to overcome the traditional theoretical limitation of the right of liberty in order to enhance the quality of life or liberty. We can conclude as following; All the fundamental right have a character of objective institutions as well as a subjective right, and the right on the participation in distribution is the right that has the complementary function of the liberty in order to participate in the process of a sort of distribution of goods and acts. The right of claims of the benefit(Leistungsrecht) is different from the right on the paricipation in distribution, the former is the right of claims that aims for a present benefit, but on the other the latter is the right of claims that doesn't always aims for a real benefit and sometimes aims to participate in the process of distribution for the present or future benefit. In the end, the distributive right that means the possibility of the reservation for the participation in distribution is the right of the possibility of the reservation for guaranteeing the minimum standard of the conditions of fulfilling the fundamental right. Today modern state have the duty to grarantee these condition.s But in the oong run, there is no doubt that these problem are a political and financial things. Nevertheless the right on the participation in distribution is very important for citizen to realize his own liberty, the right also has a set limitations.

사이버인격권에 관한 소고

류시조 釜山 外國語 大學校 1999 外大論叢 Vol.19 No.4

The purpose of this article is to study some problems of The Right of Personality in Cyberspace(Cyberego). The right of personality contains many sort of human rights, also many aspects of legal problem. In order to discuss these problems in cyberspace, first of all, we have to define the conception of cyberspace. Cyberspace is called a universal bioelectronic environment, which is more ecosystem than machine that is a consensual hallucination experienced daily by billions of legitimate users. So we may call these type of modern human being "Homo Cyberians". A graphic representation of data abstracted from the banks of every computer in the human system. But people are increasingly building cyberspatial "warehouses" of data, knowledge, information and misinformation in digital form. What they contain is accessible only to those with the right kind of portal and key. The key is software, a special form of electronic knowledge that allows people to navigate through the cyberspace environment and make its contents understandable to the human senses in the form of written language, pictures and sound. But data and information in cyberspace is apt to be hacked. So the right of dignity in cyberspace is also inclined to be encroached. And operator`s ID is one of the key to navigate through the cyberspace. Therefore anyone who wants to navigate almost must have ID. ID is a sort right of personality in cyberspace. ID isn`t always prove the truthfulness of real person. But anonymous ID extends the freedom of expression. Encryption of data protects privacy right. Censorship of contents on Internet threaten the freedom of Web. These problems is very important to the right of dignity of user. The problem of protection of the human right isn`t only legal problem but cyberspatial culture problem. Fist of all we should establish proper netiquette.

국민대표제도와 국민주권주의

류시조 釜山外國語大學校 比較法硏究所 1999 比較法學 Vol.10 No.-