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책소개
목차 리뷰 ( 0건 )
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[머 리 말]
로스쿨 제도가 도입되고 두 번의 변호사 시험이 있었다. 시험의 유형은 예상한 바를 벗어나지 않았지만 문제는 방대한 분량을 어떻게 정리하고 시험에 적용할 것인가에 있다. 또한 변호사 시험 외에 각 학교에서 치르는 시험과 모의고사에 대한 대비를 통해 학점에도 신경을 써야 하는 것이 로스쿨러들이 당면한 현실이다.
이 책은 이러한 현실을 반영하여 최소한의 분량과 시간의 투자로 최대한의 성과를 내고자 하는데 중점을 두었다. 그럼에도 저자 역량의 한계로 예정보다 부피가 늘어난 점에 대해 독자들의 이해를 구한다. 저자의 경험으로 법학은 알면 7과목 전체가 연결되고 모르면 숲속을 헤메는 경향이 강하다는 것이다. 즉 알면 다 알고 모르면 다 모른다는 말이다. 이 책은 로스쿨러들이 법학 전체를 잡을 수 있는 나침반이 되고자 하는 것이 본래의 의도였다. 천학비재한 자가 너무 큰 목표를 잡은 것인지 출간에 즈음하여 호랑이를 그리려다 고양이라도 그렸으면 다행인 심정으로 이 책을 독자들에게 내놓는다.
이 책의 특징
1. 체계상의 특징
일반적인 법학서의 체계인 편·장·절·항·목의 체계를 버리고 주제별로 1강, 2강의 형태를 취하였다. 이는 사례형 문제와 기록형 문제에 대비한 최적의 편제라고 생각했기 때문이다. 즉 각 강은 하나의 테마로 이루어지면서 변형된 문제에 대한 가지치기가 가능해지는 장점을 살리려고 노력하였다.
2. 분량상의 특징
시험의 비중은 헌법이 더 높은데도 분량은 행정법이 더 많은 점에 대해 의아하게 생각할 수도 있겠다. 저자의 수험생활과 실무경험, 그 간의 강의경험으로 보건대 헌법은 적은 분량으로 한 번에 잡아야 공부하기가 편하다는 점을 고려하였다. 행정법은 터치해야 할 부분이 상대적으로 많기 때문이기도 하다. 그리고 로스쿨 과정에서도 초반에 헌법을 더 많이 공부하여 상대적으로 로스쿨러들이 헌법에는 더 많은 지식이 축적되어 있는 것이 일반적이라는 점, 행정법은 다소 공부가 덜 되어 있다는 점, 행정법은 사례가 많이 수록되어 분량이 늘어나게 되었다.
3. 헌법 이론 부분
헌법이론은 헌법소송을 중심으로 사례형 문제와 기록형 문제에서 나올 수 있는 모든 테마를 한번에 정리하여 적은 분량으로 모든 주제에 대한 대비가 가능하도록 노력하였다.
4. 헌법 사례 부분
헌법사례는 기출사례와 변형사례로 구성되어 있는데 적은 문제수로 변형가능한 모든 문제에 대비하였다. 중요 테마는 이론편에 나온 것을 사례편에 다시 수록하였는데 이는 분량의 증가를 가져오는 단점은 있지만 반복에 의한 암기의 편의 때문에 의도적으로 한 부분이다.
5. 행정법 이론 부분
행정법 이론은 사례형 문제와 기록형 문제에 직접 현출되는 것 이전에 정리가 되어야 되는 부분이 있다.예컨대 행정주체와 행정기관, 행정청의 명확한 정리가 되지 않으면 소송의 종류에 따른 피고적격의 특정에서 실수가 나올 수도 있다.(그 외에도 이런 부분이 꽤 있다) 이런 점 때문에 행정법은 직접 시험과 관계없는 부분에 대해서도 전체적인 정리가 가능하도록 구성하였고 이점이 행정법 분량 증가의 주범이 되었다.
6. 행정법 사례 부분
행정법은 사례가 헌법보다 더 다양한 형태로 출제될 수 있고 실제로도 그렇게 출제된다. 따라서 이론부분 마다 관련되는 기출사례를 적시하였고 뒷부분에 기출사례와 변형사례를 배치하였다. 기출사례의 풀이는 헌법과 마찬가지이다.
7. 통합형 문제에 대한 부분
변호사 시험에서 통합형 문제의 출제 경향은 앞으로도 계속될 것이다. 그러나 통합형 문제는 어느 정도 연결고리가 있기 때문에 본 교재의 내용만으로도 충분한 대비가 될 것이다.
8. 기록형 문제에 대한 부분
기록형 문제는 형식적 기재사항과 실질적 기재사항으로 분류할 수 있다. 둘 다 기록 속에 있는 사실관계를 어떻게 논점으로 잡아내는가가 관건이다. 형식적 기재사항은 제1회 시험에 관할법원의 특정으로 출제되었고 제2회 시험에서는 청구취지만 물어보는 형식이었으나, 앞으로 양자 모두 중요해질 것으로 보인다. 본서는 이런 점에 대한 충분한 대비가 되도록 하였다.
9. 실무 서식례 부분
헌법소송과 행정소송에서 사용되는 실무 서식례 중에서 시험에 출제가능한 모든 유형을 정리하여 수록하였다.
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Part 1. 헌 법
제1편 헌법소송 ·············································································································································· 3
제1강 위헌법률심판(헌가 사건) ················································································································ 3
제2강 헌법재판소법 제68조 제2항(헌바 사건)의 헌법소원 ··································································· 15
제3강 헌법재판소법 제68조 제1항(헌마 사건)의 헌법소원 ··································································· 19
제4강 본안판단의 방법(답안 작성시 위헌여부의 검토 순서) ······························································· 52
제5강 권한쟁의심판 청구 ························································································································ 61
제6강 헌법재판에 있어서의 가처분 ········································································································ 68
제7강 헌법재판소 결정의 효력 ··············································································································· 69
제2편 헌법총론 ············································································································································ 75
제1강 근대입헌주의와 현대사회국가 헌법 ····························································································· 75
제2강 성문헌법체계 하에서 관습헌법의 인정여부 ················································································ 77
제3강 합헌적 법률해석 ··························································································································· 80
제4강 헌법관 ············································································································································ 83
제5강 헌법제정과 헌법개정 ·················································································································· 86
제6강 헌법변천 ········································································································································ 88
제7강 국가긴급권 ···································································································································· 89
제8강 저항권과 시민불복종 ···················································································································· 90
제9강 방어적 민주주의 ··························································································································· 90
제10강 국가형태론 ···································································································································· 92
제11강 대한민국의 구성요소 ···················································································································· 93
제12강 한국헌법의 기본원리 ···················································································································· 98
제13강 국제법과 국내법 ·························································································································· 109
제3편 기본권 ··············································································································································· 112
제1강 기본권 총론 ································································································································· 112
제2강 인간의 존엄과 가치 및 행복추구권 ··························································································· 123
제3강 평등권 ·········································································································································· 126
제4강 자유권적 기본권 ·························································································································· 130
제5강 경제적 기본권 ····························································································································· 172
제6강 정치적 기본권 ····························································································································· 187
제7강 청구권적 기본권 ·························································································································· 204
제8강 사회적 기본권 ····························································································································· 209
제4편 통치구조 ·········································································································································· 221
제1강 대의제 원리 ································································································································· 221
제2강 권력분립 ······································································································································ 223
제3강 통치구조의 형태 ·························································································································· 225
제4강 의회주의 ······································································································································ 227
제5강 국회의 운영원리 ·························································································································· 231
제6강 국회의 권한 ································································································································· 238
제7강 국회의원의 특권 ·························································································································· 256
제8강 행정부의 운영원리 ······················································································································ 260
제9강 지방자치 ······································································································································ 269
제10강 사법권 ·········································································································································· 273
제5편 헌법 사례 문제 ····························································································································· 279
2012년 제1회 변호사시험 ························································································································ 280
01. 국가배상청구와 개별 헌법조항에 대한 위헌심사의 가부 [사시 45회 변형] ····································· 290
02. 남북합의서의 성격 및 남북합의서의 체결절차 [사시 49회] ····························································· 297
03. 기본권의 경합 [사시 47회] ················································································································ 301
04. 성폭력범죄자에 대한 전자팔찌 부착 [사시 49회 변형] ···································································· 309
05. 관련문제(4번 사례의 내용을 바탕으로) ····························································································· 318
06. 인터넷상의 표현의 자유의 제한 [사시 44회 변형] ··········································································· 321
07. 집회의 자유 [사시 50회] ···················································································································· 343
08. 직업의 자유와 조례에 의한 기본권 제한 [사시 50회] ······································································ 347
09. 성적자기결정권 [사시 52회] ·············································································································· 353
10. [사시 51회] ········································································································································· 356
11. 사시 51회(25점) ·································································································································· 358
12. 사법권의 독립 [사시 51회] ················································································································ 362
13. 단체의 헌법소원주체성 ···················································································································· 368
14. 부진정입법부작위 [사시 52회] ··········································································································· 374
15. 권한쟁의 [사시 50회] ························································································································· 379
Part 2. 행정법
제1편 행정구제법 ······································································································································ 387
제1장 행정소송 ············································································································································· 388
제1절 행정소송의 한계와 종류 ··················································································································· 388
제1강 행정소송의 한계 ·························································································································· 388
제2강 행정소송의 종류 ·························································································································· 392
제2절 항고소송 ············································································································································ 394
제1관 취소소송의 적법요건 ······················································································································ 394
제1강 개 설 ············································································································································ 394
제2강 대상적격 ······································································································································ 394
제3강 원고적격 ······································································································································ 424
제4강 협의의 소의 이익 ························································································································ 435
제5강 피고적격 ······································································································································ 444
제6강 관할법원과 관련청구소송의 이송병합 ······················································································· 448
제7강 공동소송과 소송참가 ·················································································································· 453
제8강 제소기간 ······································································································································ 455
제9강 예외적 행정심판전치 ·················································································································· 458
제10강 소의 변경 ···································································································································· 462
제11강 가구제 ·········································································································································· 465
제2관 취소소송의 본안 쟁점 ···················································································································· 472
제1강 개 설 ············································································································································ 472
제2강 주장책임과 입증책임 ·················································································································· 474
제3강 처분사유의 추가 ·변경 ··············································································································· 477
제3강 취소소송의 판결 ·························································································································· 480
제4강 판결의 효력 ································································································································· 486
제5강 취소소송의 종료 ·························································································································· 494
제3관 무효등확인소송 ······························································································································· 495
제4관 부작위위법확인소송 ························································································································ 498
제3절 당사자소송 ········································································································································ 501
제4절 객관적 소송 ······································································································································· 508
제5절 행정심판 ············································································································································ 509
제2장 행정상 손해전보 ······························································································································ 517
제1절 손해배상 ··········································································································································· 517
제1강 공무원의 직무상 불법행위로 인한 손해배상청구 ····································································· 517
제2강 영조물의 설치 ·관리상의 하자로 인한 손해배상 ······································································ 536
제3강 행정상 손해배상청구의 절차 ······································································································ 540
제2절 손실보상 ············································································································································ 541
제1강 근 거 ············································································································································ 541
제2강 행정상 손실보상의 요건 ············································································································· 542
제3강 행정상 손실보상의 기준과 내용 ································································································ 548
제4강 공용수용 또는 사용의 절차 ········································································································ 548
제5강 공용수용의 효과 ·························································································································· 551
제6강 손실보상에 대한 불복 ················································································································· 551
제2편 행정법 통론 ···································································································································· 555
제1강 통치행위 ······································································································································ 555
제2강 법치행정 ······································································································································ 557
제3강 행정법의 일반원칙 ······················································································································ 559
제4강 공법과 사법 ································································································································· 566
제5강 행정상 법률관계의 당사자 ········································································································· 569
제6강 행정상 법률관계의 내용 ············································································································· 570
제7강 특별권력관계 ······························································································································· 576
제8강 행정법상의 법률요건과 법률사실 ······························································································· 577
제3편 행정작용법 ······································································································································ 584
제1장 행정입법 ············································································································································· 584
제1강 법규명령 ······································································································································ 584
제2강 행정규칙 ······································································································································ 591
제3강 형식과 내용의 불일치 ················································································································· 593
제2장 행정행위 ············································································································································ 595
제1강 행정행위의 개념 ·························································································································· 595
제2강 법률행위적 행정행위와 준법률행위적 행정행위 ······································································· 597
제3강 행정행위의 종류 ·························································································································· 610
제4강 행정행위의 부관 ·························································································································· 614
제5강 행정행위의 성립요건과 효력발생요건 ······················································································· 620
제6강 행정행위의 효력 ·························································································································· 622
제7강 행정행위의 하자 ·························································································································· 631
제8강 행정행위의 취소와 철회 ··········································································································· 647
제3장 그 밖의 행정행위형식 ···················································································································· 656
제1강 확 약 ············································································································································ 656
제2강 공법상 계약 ································································································································· 657
제3강 행정계획 ······································································································································ 660
제4강 행정사법과 행정상의 사실행위 및 행정지도 ············································································· 664
제4편 행정절차·정보공개 ······················································································································· 670
제1강 행정절차법 ··································································································································· 670
제2강 정보공개 ······································································································································ 678
제3강 정보보호 ······································································································································ 686
제5편 의무이행확보수단 ························································································································· 690
제1장 개 관 ··················································································································································· 690
제2장 행정강제(강제집행과 즉시강제) ···································································································· 691
제1강 행정상 강제집행 ·························································································································· 691
제2강 행정상 즉시강제와 행정조사 ······································································································ 705
제3장 행정벌 ················································································································································ 709
제4장 새로운 의무이행확보수단 ·············································································································· 711
제6편 행정조직법 ······································································································································ 715
제1강 행정조직법의 원리 ······················································································································ 715
제2강 국가행정조직법 ··························································································································· 719
제3강 지방자치법 ··································································································································· 720
제4강 공무원법 ······································································································································ 721
제7편 특별행정작용법 ····························································································································· 726
제1강 경찰행정법 ··································································································································· 726
제2강 급부행정법 ··································································································································· 735
제3강 규제행정법 ··································································································································· 749
제4강 공용수용 ······································································································································ 752
제5강 환경행정법 ··································································································································· 764
제8편 행정법 사례 문제 ························································································································· 770
2013년 제2회 변호사시험 문제 ··············································································································· 775
2005년 행시(일반직) ································································································································· 788
2005년 행시(재경직) ································································································································· 791
2007년 사법시험 ······································································································································ 803
2012년 5급 공채(재경) ······························································································································ 806
2012년 5급 공채(재경) ······························································································································ 812
2012년 5급 공채(재경) ······························································································································ 816
2012년 5급 공채(일반) ······························································································································ 821
2012년 사시 ············································································································································· 825
01. 사시 51회 기출 변형 ························································································································· 831
02. 사시 51회 기출 변형 ························································································································· 844
03. 사시 51회 기출 ·································································································································· 851
04. 사시 52회 기출 ·································································································································· 856
05. 사시 52회 기출 ·································································································································· 863
06. 사시 52회 기출 ·································································································································· 868
07. 예방적 부작위소송, 법률상 이익, 거부처분취소소송 [사시44회 기출] ·············································· 874
08. 다단계 행정 작용 (사시 41회) ··········································································································· 882
09. 거부처분과 집행정지 (2004년 사시 제2문의 1) ················································································· 892
10. 과징금, 일부취소판결 (사시 48회 기출) ···························································································· 896
11. 도로사용에 있어 인접주민의 법적 지위 (사시50회 기출) ································································· 904
Part 3. 공법 통합사례 문제
2012년 제1회 변호사시험 문제 ··············································································································· 909
2013년 제2회 변호사시험 문제 ··············································································································· 923
문 1. ························································································································································· 938
문 2. ······················································································································································· 944
문 3. 교원할당제와 평등권[사시 48회 변형-통합형문제] ········································································ 953
04. 공중보건의사 편입취소사건(헌재 2010.07.29. 2008헌가28) 변형 ······················································· 972
Part 4. 공법 기록형 문제
2012년 제1회 변호사시험 문제 ··············································································································· 985
2013년 제2회 변호사시험 문제 ·············································································································· 1032
Part 5. 실무기록연습
제1편 실무기록연습-헌법 ···················································································································· 1087
01. 위헌법률심판제청신청-당해사건이 형사사건인 경우 ······································································· 1087
02. 위헌법률심판제청신청-당해사건이 행정사건인 경우 ······································································· 1095
03. 법령헌법소원-헌재법 제68조 제2항의 헌법소원 ·············································································· 1099
04. 법령헌법소원-헌재법 제68조 제1항의 헌법소원 중 법령헌법소원 ·················································· 1106
[헌법관련 서식례] ····································································································································· 1116
▪ 헌법소원심판청구(법 제68조 제1항, 행정부작위) ············································································· 1116
▪ 헌법소원심판청구(법 제68조 제1항, 행정행위) ················································································· 1118
▪ 헌법소원심판청구(법 제68조 제1항, 불기소처분) ············································································· 1119
▪ 헌법소원심판청구서(불기소처분-기소유예) ······················································································· 1120
▪ 헌법소원심판청구(법 제68조 제1항, 법령) ························································································ 1121
▪ 국선대리인선임신청 ··························································································································· 1122
▪ 위헌제청서 예시(당사자의 신청에 의한 경우) ················································································· 1126
▪ 위헌제청서 예시(직권에 의한 경우) ································································································· 1127
제2편 실무기록연습-행정법 ··············································································································· 1128
관리처분계획취소의 소 및 집행정지신청 ······························································································ 1129
[행정법관련 서식례] ································································································································· 1141
[취소소송의 서식] ···································································································································· 1141
[부작위위법 확인의 소] ·····································································································································1169
▪ 행정정보공개부작위위법 확인의 소 ·································································································· 1169
[무효등 확인의 소] ·············································································································································1171
▪ 저작권등록무효 확인의 소 ················································································································ 1171
▪ 개별공시지가결정 무효확인 및 손해배상청구의 소 ········································································· 1173
판례색인 ··················································································································································· 1175
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