性的 프라이버시權利 : 美國의 判例傾向을 중심으로

尹明善(Yun Myung-Sun) 미국헌법학회 1995 美國憲法硏究 Vol.- No.6

權力分立原理에 관한 再照明

尹明善(Yun Myung-Sun) 미국헌법학회 2007 美國憲法硏究 Vol.18 No.1

During the framing of the Federal Constitution of 1787, there was already a widely accepted notion that the separation of powers should be an essential ingredient of constitutional government. To the Framers, a commingling of powers appeared to be the very definition of tyranny. To secure a 'limited government', the governmental powers are, horizontally and vertically, divided into three distinct powers or functions - legislative, executive and judicial - as exercised by three independent organs. But the water-tight division of functions was impossible in practice as well as in theory such that a pragmatic mixture of governmental functions was adopted in the Constitution. The separation of powers required separate and equal branches, with each performing a blend of functioning, thereby balancing and sometimes coordinating between those branches. Prior to Montesquieu, Locke divided governmental powers only into two - the legislative and the executive, and the judicial function belonged to the executive power. Montesquieu, however, saw the necessity of separating the judiciary from the executive and the legislative organs in order to secure individual liberty. Therefore, he for the first time divided governmental power into three functions which he attributed to three independent organs, the legislative, the executive and the judiciary. To prevent the abuse of powers, there should be some constitutional means to resist encroachments by others; that is the principle of 'checks and balances'. The idea of 'mixed government' which was rooted in the class-based structure of society dominated his theory; this is entirely different from the situation of the U. S. A. There was thus a need of modification in applying his theory to American society. A government is an 'organism' with work to do between organs - branches. The issue of the 'borderland', in particular, between the President and Congress, was left to political practice, although some principles are prescribed in the Constitution. The contest between the three organs did and still does go on from day to day with varying result. From 1787 to the Civil War, Congress was predominant organ of the government. By the turn of the century, in particular, with the 'constitutional revolution' under President F. D. R., there has been the gradual expansion of executive power, resulting in 'imperial presidency' and 'personalization of powers'. Therefore, the President assumed more initiative in the exercise of the governmental powers, the resolution of conflicts and the development of public policies. While the strict checks and balances doctrine has thus far contributed to protecting individual liberties, it also negatively worked to result in weakening of political leadership, a drop in efficiency of administration and irresponsibility to the people. If the President is occupied by one party and the majority of the Congress is taken by another, the politics used to go a deadlock. The issue of a 'divided government' remains a crucial tension point in the constitutional structure, thereby there has been consistently raised 'constitutional reform' without success. The failure to reform the constitutional structure was mainly due to the strong commitment to existing system and to the difficult process of amendment. Whatever the consequences, those powers should be sufficiently diffused and the legal mechanism should be clearly provided to protect individual liberty.

美國憲法상 象徵的 表現에 관한 考察

尹明善(Yun Myung-Sun) 미국헌법학회 2004 美國憲法硏究 Vol.15 No.1

聯邦憲法의 改革 : 그 提案과 課題

尹明善(Yun Myung-Sun) 미국헌법학회 2005 美國憲法硏究 Vol.16 No.2

1987년에 제정 200년을 맞은 미국 연방헌법은 세계 최고ㆍ최장의 성문 헌법이다. 개인적 자유를 찾아 이주해온 미국인들은 독재를 두려워한 나머지 ‘엄격한 권력분립’ 의 원리를 채택하였다. 그러나 헌법은 일종의 ‘유기체’(organism)로서 국정수행의 효율성을 추구하기 위해 권력 상호간의 협력도 요청된다. 그 동안 헌법수정은 26개조에 달하지만, 5개조만이 권력구조에 관한 것이었는데, 그 중에서도 통치구조에 영향을 미친 것은 상원의원의 직선제(수정 제17조)와 대통령 3선 금지(제22조)에 관한 2개 조항에 불과하였다. 이와 같이 미국헌법상의 권력구조는 오랜 변화 속에서도 놀라울 만큼 지구력을 가지고 있었다. 미국 헌정사에 있어서 대통령과 의회의 끊임없는 투쟁은 권력 상호간의 ‘교착상태’ (deadlock)를 결과하여 이를 극복하기 위한 헌법수정의 문제가 제기되어 왔다. 특히 1970년대 이후 대통령과 의회는 끊임없는 교착상태를 초래하여 ‘헌법개혁’(constitutional reform)의 논의가 활발하게 진행되었다. 학자들은 일반적으로 지금까지 헌법수정이 이루어지지 않은 이유는 그 역사적 전통과 민주주의 경험 및 정치적 우수성 등에서 찾고 있다. 그러나 헌법개혁에 관한 수많은 주장과 논의가 있었음에도 불구하고 헌법수정이 이루어지지 않은 것은 무엇보다도 헌법수정절차가 복잡하고 엄격하기 때문이었다. 그리하여 헌법수정절차 그 자체의 개혁이 논의되는 이유가 여기에 있는 것이다. 헌법개혁에 관한 연구가 활발하게 이루어진 것은 1980년에 구성된 ‘헌법체계연구위원회’ (committee on the Constitutional System: CCS)에 의해서였다. 동 위원회의 ‘보고 및 건의서’ 는 (1) 정당조직의 결속 강화, (2) 대통령후보 지명대회에서의 후보자와 의원의 역할 강화, (3) 선거비용의 합리적 규제, (4) 조약승인 요건의 완화 외에 (5) ‘4-8-4’ 안, (6) 의회 해산권,(7) 장관의 의회출석 발언 및 의원의 각료겸직 등을 제안하였다. 헌법수정 없이 개선이 가능 한 것은 대통령의 결단에 의해 할 수 있겠지만, 헌법수정절차를 거쳐야 하는 사항은 그 절차가 너무 엄격하기 때문에 현재로서는 그 개혁을 기대하기가 곤란하다. 여하튼, 어떤 계기에 의해 개혁이 이루어진다면 그 방향은 의원내각제의 요소를 도입할 것으로 예견된다.

美國 大統領의 立法에 관한 權限

尹明善(Yun Myung-Sun) 미국헌법학회 2008 美國憲法硏究 Vol.19 No.1

Under the governmental structure of the Federal Constitution, legislative power is assigned to the Congress only and the president has veto power to check over the legislative power. Article one section one confers the legislative power with the words, ""All legislative powers herein granted shall be vested in a Congress of the United States."" The executive has no direct legislative power; nowhere is the President given law-making authority. But the President's duties are not all purely executive in nature. The President is also associated by Constitution or practice with the legislative process in any form. The executive does in fact have a law-making power since the beginning of the Republic. Beginning with Presidents Theodore Roosevelt and Woodrow Wilson, there has been an exponential growth in the Presidential legislative powers not in the sense of formal authority but by way of effective control over Congressional legislation. Today the Executive is so dominant in the legislative process that the President may be considered to be the ""chief legislator."" The President as chief legislator operates in at least four discrete, yet overlapping ways: ① through formal and informal interactions with Congress; ② through the issuance of executive orders and other directives; ③ through his power to interpret statutes, whether or not in formal rule-making, and ④ through appointment of Justices of the Supreme Court. The second and third of these methods of presidential legislation are entirely executive, but the first and last involve formal action by Congress. Executive law-making takes two direct forms of executive orders and other directives which outnumber by far the statutes passed by the Congress each year. The President has also the duty to take care that the law be faithfully executed; this duty can be fulfilled through interpreting statutes. The President can and does influence the course of constitutional construction by exercising the power to appoint Justices of the Supreme Court and other federal judges, even though the Senate must approve nominees. He thus is an influential lawmaker, a participant in the continuing process of updating the Constitution. The legislative veto power places the President directly into the legislative process. Every bill which shall have passed two houses of Congress shall, before it becomes a law, be presented th the President: if he approves he shall sign, but if not he shall return it with his objections to the house in which it shall have originated to reconsider it. If both Houses repass the bill by a two third vote, the bill then becomes law over the veto. The importance of this veto power is not its actual use, but the threat of its use. At any rate, this veto power has played in securing the constitutional order and in protecting individual constitutional rights and minority's interests. And if any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law; this is called pocket veto. One of the shortcoming of the Constitution is that the President dos not have an 'item veto'. Today, however, item veto is recognized as an useful tool for the efficiency of legislation. The President's formal power over legislation is the first onewhich is formed through interactions with Congress. The Constitution authorizes the President to undertake policy initiatives. First, the President is required from time to time to inform Congress as to the ""State of the Union."" Second, the President may make legislative proposals to the Congress for its consideration as he shall judge necessary and expedient. Third, the President used to send messages, annual or special, to inform the Congress the direction of executive policy over legislation. And the President may convene both houses of Congress, or either of them on ""extraordinary occasions."" This power might be used to legislate special rules to overcome crises. These mechanisms are indirect methods to participate in the legislative process; nevertheless, playing the bridge role between the President and Congress. Through this role, the President has exercised a critical role in legislation, resulting in the presence of the imperial presidency. We should remember that the most important factor of successful legislation in fact lies in a political leadership.

美國憲法상 表現의 自由와 場所 : ‘公的 廣場’ 理論을 중심으로

尹明善(Yun Myung-Sun) 미국헌법학회 2003 美國憲法硏究 Vol.14 No.-

美合衆國 憲法상의 聯邦主義原理

尹明善(Yun Myung-Sun) 미국헌법학회 2007 美國憲法硏究 Vol.18 No.2

The American Constitution was designed vertically to devide political powers into a national level of government and the states. The powers of the national government were specified in the document itself, while powers not assigned to the federal government were reserved to the states by the Tenth Amendment. But the contents of the clause was not clear, conflicts between the two levels has always been addressed with differences of degree. However, the 'supremacy clause' in the sixth article resolved the collisions between two levels for the federal government on the one hand, the inherent power under the 'necessary and proper clause' in the first Article contributed to enlarging powers of the federal government on the other. The history of American federalism has been marked with frequent conflicts over powers to regulate particular matters in certain areas. Before 1787, the term 'federal' had been used to signify confederation, a system in which sovereignty remained with the states. But the Founders departed from its usage and created a 'novelty' and 'compound' which, according to Madison, the nature of federalism was national and federal. The fundamental and permanent character of the Union was seen in the decision of Texas v. White(7 Wallace 700: 1869) rendered just after the Civil War. In this case, the Supreme Court held that the Union will be perpetual and a state could not constitutionally secede. Thus, the dual federalism of the early period, under which political powers are shared by the federal government and the states, was to be vanished sooner or later. The values which were intended to be served by the new system of federalism are these: The first value was to protect individual 'freedom' by checking between the federal government and the states vertically and by using powers for the people in terms of the principle of popular sovereignty. The second value was to keep 'diversity' itself, thecharacteristics of the U. S. A. which consists of different cultures and areas, above all, the interest of the minorities. The third value was to promote 'efficiency' by overcoming conflicts among the states. Even unitary, consolidated governments find it necessary to devolve certain functions on subnational or local authority. To fulfill these values, the U. S. A. has been used the method of constitutional amendment, for example, Amendment 13, 14 and 15. In the 20th century, American federalism has been developed with New Deal and World War I and II, from 1933 to 1945. This period witnessed the wholesale centralization of policy responsibilities by the implementation of aggressive economic policy and total mobilization for the wars. One policy area after another that previously had been in the hands of the states came into the domain of the federal government. After adopting 'grant-in-aid program' under the Social Security Act of 1935, the mode of 'cooperative federalism' began to dominate federal-state relationships. Successive Presidents have championed in the realignment of powers between two levels of the nation and the states. President Johnson called for a 'creative federalism' that would involve private sector institutions as well as all governments in jointly administered programs. And the next Presidents, the Republicans, called for 'new federalism' by searching for a small government and anticentralist ideology. How to square the ideals with social and economic realities of the 21th century remained a profoundly important issues. At any rate, the final shape of federalism would be left to political accommodation between the federal government and the states.

인터넷법학에 관한 연구 서설

윤명선(Myung-Sun Yun),정완용(Wan-Yong Chung) 한국비교사법학회 2004 比較私法 Vol.11 No.1

The subject of this study is Internet law. Internet law needs to be understood in both its technical and economic context. The Internet is nothing more than a method of transporting digital information. The consequences of that transport usually have legal effects, but the precise mechanism used to transport the information will in many cases be legally irrelevant. The first part of this study aims to research the most technical characters of the Internet, the concept of the Internet law and the method of the Internet law. The second part of this study deals with several legal issues of the Internet law including the regulation on the cyberspace, the Internet and freedom of expression, the Internet and cyber crime, several issues on the electronic transactions, the Internet and intellectual property.

宗敎의 自由로운 行使 條項 : 美國 聯邦大法院의 判例를 中心으로

尹明善(Yun Myung-Sun),朴永哲(Park Young-Chol) 미국헌법학회 2000 美國憲法硏究 Vol.- No.11

잠재성 항염효과가 있는 벤즈이소티아올린 유도체의 합성

박명숙(Myung Sook Park),윤명선(Myung Sun Yun),김미경(Mi Kyung Kim),권순경(Soon Kyung Kwon) 대한약학회 2001 약학회지 Vol.45 No.6

In order to discover new useful NSAIDS, novel N-substituted 1,2-benzisothiazoline-3- one 1,1-dioxide derivatives, which can exhibit potentially antiinflammatory activity were synthesized.1,2-Benzisothiazoline-3-one-N-acetic acids 6a, b were obtained from monochloroacetic acid and sodium 1,2-benzisothiazoline-3-ones in DMF by N- al1kylation reaction. N-Substituted 1,2-benzisothiazoline-3-one 1,1-dioxice derivatives 7a-e were synthesized through the coupling of compound 6a, b and several amines (aniline, 2-aminopyridine, 2- aminothiazole, 2-aminotetrazole) with dicyclohexylcarbodiimide in methylene chloride.