• 한국언론정보학보
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• 제55권
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• pp.5-32
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• 2011

한국의 헌법재판소와 미국의 연방대법원 모두 불명확한 법률로 인한 표현의 자유가 위축되는 것을 방지하기 위해 명확성 원칙을 위헌심사 기준으로 채택했다. 위헌심사 기준으로서 요구되는 명확성의 정도가 최고수준의 명확성이 아닌 "최소한의 명확성"이라는 점과 그러한 판단을 법관의 "제한적 해석"에 맡긴다는 점도 공통점이다. 헌법재판소는 법관의 보충적 해석을 통해 보다 명확하게 불법과 합법의 경계를 구분하게 했고, 미국 연방대법원도 법원이 한정해석(narrow construction)의 방법으로 법률적 의미와 범위를 명확하게 함으로써 위헌의 소지를 줄일 수 있다고 판결했다. 그런데 판례 비교 결과, 연방대법원은 표현의 자유를 침해하는 법적 규제에 대해서는 보다 높은 수준의 명확성을 요구한 반면, 헌법재판소는 오히려 명확성 판단기준을 완화하는 경우가 발견되었다. 연방대법원은 수정헌법1조를 침해할 여지가 있는 법조항은 "세밀하게 설정된, 합리적이고, 명확한 기준(narrowly drawn, reasonable and definite standards)"이 제시되어야 한다고 거듭 강조한 데 비해, 헌법재판소는 불명확한 법률조항으로 인해 표현의 자유 침해여지가 있다는 점을 인정하면서도, 그러한 규제를 통해 얻는 국가 사회적 이익이 더 크다는 이유로, 혹은 "부단히 변화하는 다양한 생활관계를 제대로 규율할" 필요가 있다는 이유로 명확성 원칙을 희석시키는 경향을 보이기도 했다.

• International Journal of Advanced Culture Technology
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• 제7권2호
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• pp.7-12
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• 2019

Korea's laws regarding ICT must follow the Void for vagueness doctrine, the Principle of forbidden general delegation, the Principle of justification of system and the Principle of balancing test in the Constitution. The Act for the Promotion and Convergence and so on of Information and Communication in the Future should be improved as follows. It is desirable to improve the part where the principle of system justification of the Constitution is problematic in relation to existing laws. It is desirable to improve the ICT's policies on industry and convergence technologies so that they are well balanced between promotion and regulation of ICT's industries. It is desirable to improve the information service policy and legislative makeup relationship between various government agencies related to ICT. It is therefore desirable to improve the institutional complement to the post-regulatory framework for the protection of users of ICT in the future. It is desirable to create a device to replace the functions of the Information Service Budget Council in the special law of ICT.

• 의료법학
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• 제10권2호
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• pp.343-405
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• 2009

This paper is to discuss essential business of hospital business. While the labor world and ILO made continuous recommendation for improvements towards the compulsory arbitration system along with the controversy over unconstitutionality of the system, the Constitutional Court ruled that the system is constitutional on December 23, 1996(90hunba19) and on May 15, 2003 (2001hunga31). Despite this decision from the Constitutional Court, there has been much controversy over whether the compulsory arbitration system infringes the rights of collective action against the principle of trade union & labor relations adjustment which allows Commissioner of the Labor Relations Commission to decide on submission of arbitration by virtue of his/her authority in case where industrial disputes take place in the essential public-service businesses. The revision on the above provision was closely examined from the year 2003 and an agreement was made on the abolition of the compulsory arbitration system and the introduction of essential business with a grand compromise among labor unions, employers and the government on September 11, 2006 followed by revision(Essential business system enacted on January 1, 2008) of the Trade Union & Labor Relations Adjustment Act on December 30 in the same year. Accordingly, in order to perform the essential business, parties to labor relations must have an agreement or obtain a decision by the Labor Relations Commission before taking industrial actions. This paper firstly examined the concept of essential public-service businesses and essential business, legal meaning of essential business, procedures for making agreement and decision and legal effects. Secondly it intensively explored a theory against the principle of the legality which was raised from some part of society. In other words, it is claimed that a theory against the principle of the legality is not consistent with the rule of legislation and some abstract wording is against void for vagueness doctrine because part of crime constitution requirements is delegated to the Presidential Decree or to consultation among parties to labor relations. But analysis on the rule of legislation and void for vagueness doctrine reflected in the decision by the Constitutional Court led that argument for a theory against the principle of the legality is not reasonable. Close examination was done on a formal act of essential business agreement and necessity of prior agreement before submission of decision to the Labor Relations Commission which might have difficulties in performing work. In addition, an example agreement on hospital essential business is attached to help you understand this paper better.