절차적 적법절차의 적용대상
On liberty and property requiring procedural due process
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초록
Procedural due process guarantees that before depriving an individual of life, liberty or property, government must follow or offer fair procedures. Procedural due process of law does not require due process for establishing laws. Due process is required when the government acts against individuals "in each case upon individual grounds". Individuals are entitled to this procedural protection if they can demonstrate that a vested right or entitlement to an interest in life, liberty or property is at stake. Entitlements stem from nonconstitutional sources, such as statutes, contracts or established custom. After all, procedural due process norms cannot become constitutionally required without some substantive help. However, the coverage of due process of law should not be decided in terms of mere labels. Process value and antimajoritarian restraints also form a major part of procedural due process protection. Not only "nature" but also "significance and worth" of private interests have to be looked at.
Abstract
Procedural due process guarantees that before depriving an individual of life, liberty or property, government must follow or offer fair procedures. Procedural due process of law does not require due process for establishing laws. Due process is required when the government acts against individuals "in each case upon individual grounds". Individuals are entitled to this procedural protection if they can demonstrate that a vested right or entitlement to an interest in life, liberty or property is at stake. Entitlements stem from nonconstitutional sources, such as statutes, contracts or established custom. After all, procedural due process norms cannot become constitutionally required without some substantive help. However, the coverage of due process of law should not be decided in terms of mere labels. Process value and antimajoritarian restraints also form a major part of procedural due process protection. Not only "nature" but also "significance and worth" of private interests have to be looked at.
참고문헌 (10)
- 김영환, "법철학의 근본문제" (2006), 홍문사
- 김형성, "참여정부의 법치주의" (2007)
- 임지봉, "적법절차조항의 우리 헌법에의 도입과 그 운용", 11(3) (2005)
- 정태욱, "법절차의 정의가치", 1 (1998)
- John Hart Ely, "Democracy and Distrust" (1980)
- Ronald D. Rotunda, "Treatise on Constitutional Law- substance and procedure- 3rd edi." (1999), West Group
- Erwin Chemerinsky, "Constitutional Law-Principles and Policies-" (1997), Aspen Law and Business
- Rodney A. Smolla, "The reemergence of the right-privilege distinction in constitutional law The price of protesting too much" (1982)
- Morton J. Horwitz, "The History of the Public", Privte Distinction, 1982, pp.1423, ~
- Van Alstyne, "The Demise of the Right-Privilege Distinction in Constitutional Law", 1439 (1968)