SHERP

미국 헌법상 명확성 원칙(void for vagueness) 심사 -미국연방최고법원 판례를 중심으로
Void for Vagueness Test of U.S. Supreme Court

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Authors
전종익
Issue Date
2009
Publisher
서울대학교 법학연구소
Citation
법학, Vol.50 No1 pp.455-481
Keywords
명확성의 원칙공정한 고지자의적이고 차별적인 집행일반인 기준법전문가기준arbitrary and discriminatory enforcementLawyer standardvoid-for-vagueness doctrinerule of Lawfair notice
Abstract
U.S. Supreme Court has held that the roles of vagueness doctrine are fair
notice and prohibiting arbitrary and discriminatory enforcement. As the former is
considered more important, the Court has explicitly taken the person of ordinary
intelligence standard. But the Court usually declared unvague the statute whose
meaning could be defined only by reference to many cases, other statues, and
common law tradition. It is substantially the lawyer standard. To solve this
dilemma, it is suggested that the ordinary person who would be law-abiding
would not be reluctant to take consult the lawyer. In some cases, the Court said
that prohibiting arbitrary and discriminatory enforcement is more important and
that it is not vague. if the statute would give minimal guidelines to govern law
enforcement. Most of recent 30 years’ vagueness cases are the first amendment
cases and criminal law cases in which area the statue should have the highest
definiteness. The Court usually decided not vague on those cases. That would
make clear that the U.S. Supreme Court takes the lawyer standard.
For the same reason, the Standard of our vagueness doctrine must be changed.
For a long time, the Constitutional Court of Korea has explicitly taken the
ordinary person standard in many decisions, but substantially it has applied the
lawyer test. In order to make consistent the external standard and the substantial
test, it should declare that the Court take the lawyer standard or at least the
law-abiding person standard.
ISSN
1738-1150
Language
Korean
URI
http://lawi.snu.ac.kr/

http://hdl.handle.net/10371/10272
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College of Law/Law School (법과대학/대학원)The Law Research Institute (법학연구소) 법학법학 Volume 50, Number 1/4 (2009)
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