適法節次의 適正要素와 分析方法論 : 美國聯邦大法院의 判例를 中心으로 = What Process is Due - the Source and Methods of Specifying the Protection to be Accorded

다국어 초록 (Multilingual Abstract)

Most essentially, due process of law embodies a promise to the individual that his government will treat him fairly. Due process of law is, however, such a broad and flexible concept that it eludes precise definition.
Due process is primarily a guarantee of fair procedures, of 'how' the government must or must not do something, not of 'what' they must or must not do. "It is procedure". Justice William O.Douglas noted, "that spells much of the difference between rule by law and rule by whim or caprice.
With the development of the doctrine of substantive due process, the Supreme Court of the U.S.A. appointed itself the guardian of property rights against restrictive state legislation. Oddly, due process guarantee was intially used with a great deal more effect to protect property than life or liberty. This development transformed a guarantee of procedural fairness for persons into a legal foundation from which the court monitored state economic regulations.
Yet even as the court sounded the epitaph for the use of substantive due process to justify its supervision of economic regulation, it was developing a line of rulings under the equal protection gurantee which would lead it back to the consideration of the substance of state legislation. And matters of personal choice in family life have been the primary beneficiary of the 'new substantive due process' approach foreshadowed in the case of skinner v. Oklahoma(1942). Now, privacy became a value protected by the American Constitution.
Prior to the advent of the notion of statutory entitlements, the question of 'what process is due' was not considered separately from the issue of what deprivations of personal interests by the govenment warrant due process protections. When statutory entitilements were recognized, however, the Court distinguished conceptually between the identification of the interests protected, and the assessment of the process due, and isolated different factors as crucial to the two inquiries. The Constitution is the source of the protection to be accorded when an interest in 'liberty' or 'property' is infringed. The notion of fundamental rights, privacy, dignity, and equal protection is the substantive constitutional values, and the notion of notice and hearing is the procedural constitutional values.
The still dominant 'instrumental' approach to due process values procedural safe -guards less as expressions of the individual's dignity than as means to the minimization of factual error in the application of the relevant substantive rules.
And, in the case of Mathews v.Eldridge(1976), the Court announced something akin to a general formula for the determination of what process is due. that is so-called interest-ablancing test. But even accepting that instrumental perspective for the moment, there are serious problems in striking the balance called for by decisions like Eldridge. The right not to be singled out for hurtful treatment by the state without a chance to talk back, and to be told why, will increasingly have to be identified as a substantive aspect of personal liberty.

목차 (Table of Contents)

• Ⅰ. 序 論
• 1. 硏究의 目的
• 2. 硏究의 範圍 및 方法
• Ⅱ. 適正性의 要素
• 1. 理念的 要素:實質的 憲法價値
• 1) 基本的 權利 및 프라이버시
• 2) 尊嚴價値
• 3) 平等價値
• 2. 形式的 要素: 通知와 聽聞
• 1) 節次要素의 決定基準
• 2) 時期의 適正
• 3) 節次의 形態 및 內容의 適正
• Ⅲ. 分析方法論
• 1. 適正性의 判斷態度와 批判論
• 1) 實定法優先主義의 觀點
• 2) 實體面과 節次面의 分離
• 3) 判斷責任의 配分
• 4) 實體面과 節次面의 接近
• 5) 道具的 接近方法과 本質的 接近
• 2. 審査基準의 2元化
• 1) 合理的 根據審査
• 2) 嚴格審査
• 3. 適正性의 限界
• 1) 反駁不能의 推定
• 2) '漠然해서 無效' 理論
• 3) 節次保護의 抛棄
• Ⅳ. 結 論