主權槪念에 관한 考察

김강운 한국헌법학회 1996 憲法學硏究 Vol.2 No.2

자기결정권과 평등

김강운 원광대학교 법학연구소 2006 圓光法學 Vol.22 No.1

유럽에 있어서 인권보장의 체계

김강운 圓光大學校大學院 1995 論文集 Vol.14 No.-

The European system for protecting human rights is primarily composed of two major treaties : the European Convention on Human Rights and Fundamental Freedoms(ECHR) and the European Social Charter(ESC). The ECHR, which is focused upon the protecion of civil and political rights, was adopted n 1950 and entered into force in 1953. It is thus the oldest specific human rights instrument in existence, its entry into force pre-dating the ICCPR by more than twenty years. The ESC, which covers the implementation of economic and social 'rights and priciples', was adopted in 1961 and entered into force in 1965. Both Conventions were drafted under the auspices of the Council of Eupope, an inter-governmental organization of 25 European states, the function of which is to faciliate European cooperation across a broad range of subjects. Upon joining the Council, every member must, under Article 3 of its Statute, accept the principles of the rule of law and of the employment by all persons within its jurisdiction of human rights and fundamental freedoms. . . . And, as Vasak points out, the themes of democracy, the rule of law and the protecion of human rights permeate the Council's founding document. These principles are also echoed in the ECHR's Preamble, which reaffirms their crucial importance to the High Contracting Parties.

일조권의 헌법상의 근거와 침해구제

김강운 원광대학교 법학연구소 2007 圓光法學 Vol.23 No.1

A housing is a comfortable dormitory in human living and a space of basic group in social organization. Recently, the inhabitants had concentrated at a metropolis according to development of society. Therefore, this phenomenon had caused to the increasing of requirement housing, the overpopulation of metropolis and the high-rising of structures. Under this circumstance, a right to enjoy sunshine became to social problems in company with pollution, traffic accidents, consumer protection, medical accidents. According to a recently newspaper reports, a person trespassed prefer to lawsuits for liability reparation about trespassing right to enjoy sunshine. Even, a murder case occurred to dispute trespass to right to enjoy sunshine in Seoul. And a owner of new structure murdered neighbours at the crack of dawn disputing about right to enjoy sunshine. Like this, Problems of right to enjoy sunshine became to emotional dispute beyond legal dispute and became to tragic matters in modern society. Therefore, It is required to recognition that the right to enjoy sunshine is a nation's inalienable fundamental right. But Government Policy concentrate on supply of housing and the protection of right to environment and right to enjoy sunshine are passive situation. Moreover, the Construction Law provide the right to enjoy sunshine but those provisions are not enough. It is required to reconsolidation laws and systems to relating the right to enjoy sunshine for preventing this tragical accidents. In our country, the environmental right is first provided the eighth revision constitution in 1980. the present constitution concretly provided in Article 35 as follows. Article 35 (1) All citizens shall have the right to a healthy and agreeable environment. The State and all citizens shall endeavor to protect the environment. (2) Substance of the right to environment shall be determined by Act. (3) The State shall endeavor to ensure comfortable housing for all citizens through housing development policies and the like. It is not the direct provision for right to enjoy sunshine in constitution that in constitution. But constitutional scholars admit the right to enjoy sunshine authorizing the Article the tenth and the clause first of the thirty-seventh. In Administrative Law, the Construction Law Article the fifty-third and the Enforcement Ordinance of the Construction Law Article the eighty-sixth directly provided right to enjoy sunshine. In Civil Law, the Civil Act had not direct provisions about right to enjoy sunshine but scholars and supreme court find the authority on the adjacent relation provisions. Nations distrust these provisions that not enough provisions. Therefore, I want to speculate the overall laws and systems relating to disputes about right to enjoy sunshine ande want to reestablish constitutional authority on right to enjoy sunshine.

인사청문회의 법적 근거와 문제점

김강운 원광대학교 법학연구소 2010 圓光法學 Vol.26 No.3

자기결정권과 평등

김강운 圓光大學校 法學硏究所 2006 法學硏究 Vol.22 No.1

Self- Determination is that determined for thing about self by oneself and the right to self-determination is right to do so. So to speak, We can grasp self-determination by an idea and can grasp the right to self-determination by constitutional right. As well, the term of autonomy grasp the meaning of the form of individual autonomy right in here though used numerous meaning according to disputants. The self-determination as .a constitutional right is the right to determine about oneself private thing and have features called a unique life style or a preparedness of risk, together with it. But then, it is not gone the clear boundary between the right to self-determination and other than rights. Anyway, the self-deterrnination are not the same as the liberty and the right to happiness pursuit, because the liberty and the right to happiness pursuit contained the right to itself for personal value outside the self-determination. The effectiveness of this self-determination must set forth beforehand the equality. Therefore, I would speculate the set up of self-determination and the problems of equality for the premise of self-determination.

『經國大典』의 編纂과 史的 意義

金康雲 圓光大學校大學院 1995 論文集 Vol.13 No.-

"Koryo" had imitated the systems of "Tang" from the biginning of the founding of a country in order to preparate its the culture and intitutions, anothers enacted the practical laws, ordinances and coustoms to apply for internal affairs. But "Koryo" has not enacted the intergrated code of laws that get become the govwenmental basis. Anyhow, "Koryo" has been consistent through the laws and ordinances, case laws, coustomary laws and also had has the norm-systems that applied to singular circumstances. In January, 1392(the fourth years of "Kongyang-wang") "Chong Mong-chu" made the new code of laws that considered "Taemyongnyul" and "Chi-jong-cho-kyok" of "Won", and then had made it of "Kongyang-wang", but it had no effected and had been an individual-making. Then "Koryo" had been destroyed. "Lee Song-gye" has killed "Chang-Wang of Koryo" through a chance of a military withdrawal of "Oehwa" and snatched a political power at the end of "Koryo". The reformist-officials group that has participated in the founding of a country build up a new political power with "Lee Song-gye" as the central figure. The group appeared in "Lee's Dynasty" as a dominant political power and has desired to realize the ideal politics. The reformist-officials group that appeared as a dominant political power put the nation's basis on a solid foundation and concentrated his greatest energy upon centralizing the powerful political-system that based on a despotic power at same time. "Kyongkuktaejon" had been accomplished through a course of establishing the new ruling systems and orders that be based on "Confucian Politics" by "Lee Song-gye" reined as a ruler of "Lee's dynasty" and the reformist-officials group. Accordingly, it is necessary to investigate the social, historical background that be placed on the nature of "Kyongkuktaejon" in order to look into the character of it. Above all things, the social, historical background of "Kyongkuktaejon" has a idea of "Confucianism"(particulary "Song Confucianism" : "Chuja's" human nature and natural laws) that had become the political idea of "Lee's Dynasty" and has been placed on the ethical, moral basis of social existences. "Song Confucianism" has become the national literature, reconstructing the "Song-gyun-gwan" and the examination-system of a old state by the reformist-officials group. It has become a important gateway that be appointed as a government official. "Sa-tae-bu"(the all gentry) had been molded as a dominant political power and "Song Confucianism" has appeared with a new political thought. Accordingly, the culture and institutions has been reconstructed with centering around "Confucianism" that be taken the place of a former "Buddhism". Therefore the culture and institutions of fudal nations cannot help reconstructing as it of Confucianismic things. A governmental organixation and order of "Munjon-Mubi" has been set up through a couse of the reconstruction. The fudal ethics-morals and the empty-formal ceremony has been formed in social existences. The reformist-officials group set up a perfect virtue as a source of politics, what we called, advocated the virtue-ruling and the principles of royalty, wiped out a view of morals that be based on one's moral obligations in all sphere of social existences of nation and regarded it as a theoretical basis of rule-making. Therefore, each laws, ordinances and regulations has been permeated with this kind of the political thought. The conducts that be baffled in the politics of the principles of loyalty and the view of ethics-morals, prescribe as a crime and have been fallen to a severe punishment. "Kyongkuktaejon" has been edited as a fundamental norm of ruling in the backgroung of this kind of a ideal tendency at the beginning of the founding of a country. Also, it is necessary to make a unified-code of laws as a governmental instrument, reconstructing a ruling-system that be came from the centralization. Particulary, the legal thought in "Lee's Dynasty" has been dominated through the whole period of "Choseon" by "Chojong-Songhon-Chonchungism", it is necessary to investigate about it. Also, "Kyongcheyukchon" be similar with the editing of "Kyongkuktaejon", is a product of a transitional period that come to it. Accordingly, It is necessary to investigate "Kyongcheyukchon" in order to know "Kyongkuktaejon". Therefore, in the second chapter, I will examine about the relation of "Choseonkyongkukchon" and and "Kyongcheyukchon", the enactment and contents of "Kyongcheyukchon". In the third chapter, I will scrutiny about the enactment and contents of "Kyongkuktaejon". And then, In the fourth chapter, I want to make clear of the historical meanings and the features of "Kyongkuktaejon".

프랑스 헌법원판결과 법률에 대한 조약우위의 원칙

김강운 圓光大學校 法學硏究所 2005 法學硏究 Vol.21 No.2

In fifth republic of France (l958), article 61 of the Constitution authorized the Conseil d'Etat to judge the unconstitutionality of laws. The Conseil d'Etat has judged the unconstitutionality of laws on the authority of this power. Presently, the Preamble of the Constitution acknowledge the trial-norrnity of' the Declaration of Rights of Human and Citizen in 1789', the Fundamental Rule acknowledged by the Third Republic Laws and the Preamble of the Constitution in 1946. These is called the Constitutional-Block in a lump. But it is the Protection-Treaty of Human Rights and the Fundamental Liberties in Europe(called in next the Europe Treaty of Human Rights). This Treaty regulated the establishment of the Committee of Human Rights in Europe, the Court of Human Rights in Europe and the Committee of the Ministerial in Europe, in Strasburg. Also this Treaty levy the duty of the respect of the Human Rights for the contracting parties in the Treaty and aim at the remedy of the infringement of the Human Rights that not can be remedied by all remedy systems of the contracting parties in the Treaty. But the Conseil d'Etat in France and the Court of the Human Rights jointly aimed at the protection of Human Rights, nevertheless be different from the method of investigation. Well known, the former adopt the metaphysical unconstitutionality, the latter is the concrete unconstitutionality in the matter of the infringement of Human Rights. The Treaty of Human Rights in Europe consists of the Constitution(the Constitution-Block). Therefore, I regard that accelerate the function of the protection of Human Rights if the Conseil d'Etat can judged the suitability-inspect of the Laws to Treaty. But the Article 55 of the Present Constitution regulated the Treaty-Predominance to Laws. It is important that how interpretate the Treaty-Predominance to Laws. Therefore, this thesis aimed at the Rule of the Treaty-Predominance to Laws and aimed that whether or not the Constitution-Block included the Treaty of Human Rights in Europe by investigating the cases of the suitability of the Laws to the Treaty of the Conseil d'Etat.

인간사회의 통합과 법

김강운 圓光大學校 法學硏究所 2004 法學硏究 Vol.20 No.-

Recently, Our Society have been fallen into confusion for one's own interests, in executing the law of sex-selling-buying, in abolitioning the stat-security law, in declaring the new national capital construction law against the constitutional law. Moreover, Our Korea is serious conflict between the Ho-nam and Young-nam. Therefore, I troubled what is the methods of community formation and social integration of our society. Particularly, the function of social integration by laws are general and systematic under the modern law-state, this thesis is aimed at the function of the law by social integration.

국가배상책임의 성질과 책임의 주체

김강운 圓光大學校 法學硏究所 2006 法學硏究 Vol.22 No.2

The first Article of the twenty-ninth in the Korean Constitutional Law prescribed as follows: If any citizen is injured by unlawful act committed by a public official in the exercise of public office, he/she may claim just reparation against the State or public organization under the conditions as prescribed by Act. In this case, the public official concerned shall not be immune from liabilities. And this State Compensation System have been concretized by enacting and enforcing of the State Compensation Act. Concerning this claim to the state compensation, theories and cases are opposed to each other if the State Compensation Act is a public law or a private law and if the state compensation responsibility is a substitute responsibility or a self responsibility of State and if the person responsibility for the state compensation is State or a public officer and if the person responsibility for the state compensation is a public officer together State. Some scholar don't keep up coherence Concerning this problems. Even, Our Supreme Court have consistently treated the state compensation suit by civil suit. But the treatment method of the state compensation suit IS confronted between the scholars whether administrative suit or not civil suit. Before handling the problems concerning whether the State Compensation Act is a public law or a civil law, whether the state compensation responsibility is the substitute responsibility or the self responsibility of State, whether the person responsibility for the state compensation is a State or a public officer and whether the treatment method of the state compensation responsibility is a civil suit or a administrative suit, the present writer want to definite the nature of the state compensation responsibility and after that, I will want to settle the points at issue of the State Compensation Act, in basis of the nature of the stater compensation responsibility. This method is keep up a logical coherence in the Sate Compensation Act. For grasping the nature of the state compensation responsibility in our nation, I think that is preceded to survey the state compensation system of the main nations that early enforcing the state compensation system than korea, that is preceded to inquiry in what this main nations have grasp the state compensation responsibility. Therefore, I want to survey the nature of the state compensation responsibility and the points at issue on the State Compensation Act, after generally survey the state compensation system of the main nations in this thesis.