獨逸 聯邦憲法裁判所와 美國 聯邦大法院의 違憲審査基準論 = A Study on Constitutional Yardsticks of the Highest Courts in Germany and the United States

다국어 초록 (Multilingual Abstract)

As the highest tribunals for constitutional cases and controversies arising under the Constitutions and laws of Germany and the United States, both the German Federal Constitutional Court and the United States Supreme Court have applied unique yardsticks when deciding the constitutionality of laws in each countries with the distinct power to interpret the Constitutions with finality, functioning as a superlative guardian of the Constitutions The standard of the Courts’ constitutional review power, however, has been different in some ways under each country’s constitutional theories In Germany, despite of some counter arguments, the balancing test has been a main yardstick to rule the constitutionality of laws whereas the levels of scrutiny ranging rational basis test to intermediate test to strict test have been solidly of US as “instructions for a balancing test,” which have been applied to determine the constitutionality of laws in constitutional litigation concerning especially individual rights and equal protection From a comparative perspective, I examined both different and similar tests that two highest Courts have adopted in order to figure out whether they are to be of use to Korean constitutional review cases. For that purpose, I took a close look at the discussions about the freedom of sexuality or gay rights, especially focusing on the confusing attitudes of the United States Federal Courts on the cases of Homosexuals in army bases In conclusion, I took the position that even if the levels of scrutiny are of great help for us to develop more detailed constitutional theories when the Korean Constitutional Court deals with some thorny constitutional issues ahead of us, we should be more prudent and cautious not to import such theories without any hesitation. Since our constitutional theories congenial to the Korean legal soil have been developed by many efforts that Korean scholars and lawyers have put, I would like to suggest that we would better to make our own yardstick more reasonable and clearer with helps of other countries’s constitutional yardsticks. Also, it seems necessary for us to continuously pay attention to the decisions of constitutional matters handed down by the German Federal Constitutional matters handed down by the German Federal Constitutional Court and the Supreme Court of the United States.

목차 (Table of Contents)

• Ⅰ. 序論
• Ⅱ. 獨逸과 美國의 違憲審査基準
• Ⅲ. 美聯邦大法院의 違憲審査基準과 그 展望-性的 趣向의 自由로서의 同性愛와 軍隊 內에서의 同性愛의 憲法的 審査問題
• Ⅳ. 結論 - 우리 憲法判例에 대한 美聯邦大法院의 3段階 司法審査基準論의 示唆點 및 展望
• 참고문헌
• Abstract