적법절차원리에 관한 연구 = A Study on the Doctrine of Due Process of Law

다국어 초록 (Multilingual Abstract)

The purpose of this study is to analyze problem of institution and operation of the doctrine of due process of law in the US, Japan and Korea.
Direct equivalents of procedural due process are found in most legal systems, since the concept of a fair trial is fundamental to the idea of law itself. The historical origin of due process may be traced to chapter 39 of Magna Carta(1215), which declared that no free man should be taken or imprisoned or dispossessed of property of privileges except by the lawful judgment of his peers or by the law of the land. These words influenced developments in English criminal procedure: judgment by peers evolved into trial by jury, and 'the law of the land' was interpreted by parliament in the fourteenth century and by Sir Edward Coke in the seventeenth century as meaning due process of common law.
The fifth Amendment of the United State Constitution proclaims that no person shall be deprived of life, liberty or property without due process of law, and the fourteenth Amendment extends the same principle to state action. Upon these declarations has been built a vast superstructure of constitutional law that serres to ensure that governmental power is not used against individuals except in accordance with the law and with due regard for their rights. In Criminal law an accused is entitled to a fair trial which entails inter alia prior notice of any charges, opportunity to prepare a defence, the right to counsel, the right to submit eridence and cross-examine, the right to a JURY verdict and a impartial judge. In US law such values also extend to civil proceedings between individual and to decision making by administrative agencies whose powers may affect an individual's right or freedom.
In 1970 the Supreme Court opened up the application of procedural due process to a wide variety of the individual's relation with government, holding in Goldberg v. Kelly that an eridentiary hearing must be given before a social welfare agency decides to terminate the payment of benefit. One controversial branch of the due process doctrine, known as substantive due process, empowers court to protect individual rights against regulatory measures in executive or legislative from which in substance intrude further upon in individual antonomy than the Judges consider reasonable, first seen early in this century (in Lochner v. New York 1905), when legislation affecting economic and property rights was struck down, but subsequently diseredited as palitical opinion changed, substantive due process has been given new like more recently in the protection of personal privacy against laws banning abortion and the use of contraception.
Japanese and Korean Constitution have adopted the doctrine of due process of law in 1945 and 1988 respectively. But in these two countries, the legal system is different from that can be functioning in American Constitution.
In conclusion, the doctrine of due process of law can serve for the promotion of fundamental rights of an individuals.

목차 (Table of Contents)

• Ⅰ. 서 론
• Ⅱ. 적법절차원리의 역사적 배경과 관념
• Ⅲ. 미국에서의 적법절차원리의 수용과 발전
• (1)미국에서의 적법절차의 도입
• (2)절차적 적법절차
• (3)실체적 적법절차
• Ⅳ. 일본에서의 적법절차원리의 수용과 발전
• (1)일본에 있어서 적법절차의 수용
• (2)적법절차와 죄형법정주의
• (3)절차의 적정
• (4)실체적 보호
• Ⅴ. 한국 헌법에서의 적법절차의 수용과 운용
• (1)적법절차의 수용
• (2)판례에 나타난 적법절차
• (3)행정절차에 있어서 적법절차
• Ⅵ. 결 론