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

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서울대학교 법학연구소
법학, Vol.50 No.1, pp. 455-481
명확성의 원칙공정한 고지자의적이고 차별적인 집행일반인 기준법전문가기준arbitrary and discriminatory enforcementLawyer standardvoid-for-vagueness doctrinerule of Lawfair notice
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.
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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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