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출판사 리뷰

2010년 초판 발간 이후 아주 오랜만에 개정판을 낸다.
이 개정판에서는 우선, 저자가 헌법Ⅰ(1999. 7.)과 헌법Ⅱ(2000. 3.)를 출판하고 난 후 출판된 10여 종 넘는 헌법교과서들 가운데서 계속해서 출간되고 있는 교과서들의 내용을 검토하여 수록하였다. 다음으로, 2000년대 들어서면서 여러 논문집에서 훌륭한 논문들이 많이 발표되고 있어 그 내용도 가능하면 검토하여 수록하려고 노력하였다. 셋째로, 그리 흔한 경우는 아니지만, 여러 교과서와 논문에서 저자의 생각과는 다르거나 저자의 생각을 오해하는 견해들도 발견되고 있어 가능한 한 그에 대한 저자의 생각을 밝힘과 동시에 저자의 생각에 미숙한 부분이 있었다면 그를 보완 또는 수정하였다. 물론 이는 2000년 이후에 출간된 헌법교과서들과 논문들에 한정된 이야기이다. 2000년 이전에 헌법교과서를 출판한 헌법학계의 선배들로부터는 저자가 헌법학교과서를 출판한 후 어떤 가르침도 받은 바 없다. 이 점에 대해서는 매우 아쉽게 생각하고 있다. 마지막으로, 2010년 이 책의 초판 발간 이후에 내려진 중요한 헌법재판소 결정들과 대법원 판례들도 수록하려고 노력하였다.
형식적으로는 우선, 독자에 따라 본문만 계속해서 읽으려는 독자, 본문과 판례를 함께 읽으려는 독자, 판례만 읽으려는 독자가 있을 수 있어 그들의 편의를 위하여 본문과 구별되게 판례를 음영 처리하였다. 다음으로, 각주를 면밀히 검토하려는 신중한 독자의 경우 예컨대 초판에서는 409쪽에 있는 (각주 920)의 내용을 확인하기 위하여 5쪽까지 되돌아가야 하는 불편함이 있었다. 이러한 불편함을 없애기 위하여 각주를 편별로 일련의 각주 배열에서 쪽마다 각주를 새롭게 배열하는 방법으로 변경하였다.
이러한 여러 가지 이유로 2010년의 초판에 비해 쪽수도 80쪽 이상 늘었다. 이 개정판이 초판에 비해 내용적, 형식적으로 더욱 풍부한 것이 되어 독자들이 우리 헌법의 개별기본권을 이해하는데 도움이 되었으면 한다.


2015. 7.
홍 성 방

목차
第4 編　個別基本權
第1 章　基本權保障의 理念과 包括的 基本權
第1 節　人間의 尊嚴과 價値······················································································ 3
1. 憲法規定·································································································· 3
(1) 人間의 尊嚴을 規定하고 있는 憲法·················································· 3
(2) 人間의 尊嚴을 規定한 憲法規定의 의미 ·········································· 4
(3) 人間의 尊嚴規定에 影響을 준 문서 ·················································· 4
(4) 人間의 尊嚴性規定의 韓國憲法에의 수용 ········································ 4
2. 人間의 尊嚴과 價値의 意義································································ 5
(1) ‘人間으로서의 尊嚴과 價値’의 槪念·················································· 5
(2) 人格主義的 人間觀의 表現································································· 9
(3) 人間은 왜 尊嚴한가? ············································································ 9
3. 人間의 尊嚴과 價値의 法的 性格···················································· 11
(1) 學　　說······························································································· 11
(2) 私　　見······························································································· 12
4. 具體的 權利性 與否············································································ 14
(1) 學說 및 判例······················································································· 14
(2) 私　　見······························································································· 17
5. 人間의 尊嚴과 價値의 主體······························································ 33
(1) 自然人··································································································· 33
(2) 人間의 死體························································································· 34
6. 人間으로서의 尊嚴과 價値의 效力··················································· 35
7. 人間으로서의 尊嚴과 價値의 制限··················································· 35
(1) 學　　說······························································································· 35
(2) 私　　見······························································································· 35
第2 節　幸福追求權······································································································ 37
1. 憲法規定, 由來 및 基本權體系上의 問題點··································· 37
(1) 憲法規定과 그 由來··········································································· 37
－ v －
vi　차　　례
(2) 幸福追求權規定의 수용배경 ······························································ 37
(3) 幸福追求權規定을 수용한 데 대한 학계의 견해 및 사견 ············ 38
2. 幸福追求權의 槪念·············································································· 39
3. 幸福追求權의 主體·············································································· 41
4. 幸福追求權의 法的 性格···································································· 41
(1) 槪　　觀······························································································· 41
(2) 學　　說······························································································· 41
(3) 學說에 대한 檢討··············································································· 45
(4) 私　　見······························································································· 48
5. 幸福追求權의 內容·············································································· 49
(1) 學說과 判例························································································· 49
(2) 새로운 학설 ·························································································· 52
(3) 私　　見······························································································· 55
(4) 具體的 內容과 適用··········································································· 56
6. 幸福追求權의 效力·············································································· 59
7. 幸福追求權의 限界와 制限································································ 59
8. 幸福追求權의 侵害와 救濟·············