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국제인권규약상 개인 청원 제도의 정의, 내용, 관련사례등으로 구성됨.
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Ⅰ. 서설 ····································································· 1
Ⅱ. 개인청원제도의 성립과정····················································· 2
Ⅲ. 개인청원제도의 적용범위····················································· 2
1. 인적 범위·································································· 2
1) 청원인의 자격요건························································ 2
(1) 외국인의 경우························································· 2
(2) 개인집단의 경우······················································· 3
(3) 침해의 피해자························································· 3
2) 청원대상국의 범위························································ 3
(1) 선택의정서 가입국····················································· 3
(2) 개인을 상대로 한 청원················································· 3
2. 장소적 범위································································ 3
3. 시간적 범위································································ 4
4. 물적 범위·································································· 4
Ⅳ. 개인청원제도의 국내적 구제절차완료·········································· 4
1. 국내적 구제절차완료원칙의 적용············································· 4
1) 일반국제법상 국내적 구제절차완료의 원칙·································· 4
2) 자유권규약상 국내적 구제절차완료의 원칙·································· 4
2. 완료해야 할 국내적 구제절차················································ 5
1) 사법적 성격의 구제절차··················································· 5
2) 효과적 구제절차·························································· 5
3) 예외적 구제절차·························································· 5
3. 국내적 구제완료의 조건····················································· 6
1) 청구의 동일성···························································· 6
2) 절차적 조건의 준수······················································· 6
3) 국내적 구제완료원칙의 비적용············································· 6
4) 국내적 구제완료의 입증책임················································6
Ⅴ. 개인청원제도의 기타요건 및 제한············································· 7
1. 규약 규정과의 양립성······················································· 7
2. 익명의 청원금지···························································· 7
3. 청원권 남용 금지··························································· 7
4. 다른 국제절차에서 심사 중이지 않은 청원···································· 7
Ⅵ. 개인청원제도의 처리절차····················································· 7
1. 인권이사회에서의 심리절차·················································· 8
1) 개인청원서의 접수························································ 8
2) 심리적격의 검토·························································· 8
3) 사건의 본안심리·························································· 9
(1) 사실의 인정··························································· 9
(2) 규약 위반의 판단······················································ 9
2. 인권이사회의 최종견해····················································· 10
1) 최종견해 제시··························································· 10
2) 최종견해의 법적성질····················································· 10
3) 후속절차································································ 10
Ⅶ.국제인권조약(규약)의 국내적 효력과 적용····································· 11
1. 국제인권조약과 국내법의 관계·············································· 12
1)일원론과 이원론의 논쟁··················································· 12
2.국제법과 국내법의 관계에 관한 비교법적 고찰······························ 12
(1)국제법 우위론························································· 12
(2)조약이 당사국의 헌법의 일부가 되는 경우······························· 12
(3)조약이 당사국의 법령에는 우위이나 헌법에는 후위인 경우················ 12
(4)조약과 국내법률이 같은 지위를 갖는 경우······························· 13
3.우리 정부의 입장··························································· 13
Ⅷ. 개인청원제도 실행의 문제점과 활성화 방안··································· 13
1. 개인청원제도 실행의 문제점················································ 13
1) 선택의정서의 수락국가수의 문제·········································· 13
2) 개인청원의 허용성 요건 문제············································· 14
3) 본안심리절차의 객관성 문제·············································· 14
4) 절차의 진행 및 최종 결정까지의 소요시간 문제···························· 15
5) 최종 견해의 법적구속력 및 실효적집행 문제······························· 15
2. 개인청원제도의 활성화 방안················································ 15
1) NGOs에 대한 개인청원 제기 자격 부여····································· 15
2) 효과적인 심리절차와 증거방법의 도입····································· 16
3) 최종견해의 법적구속력에 대한 재고······································· 16
4) 인권이사회의 기능강화··················································· 17
Ⅸ. 대한민국 관련 UN인권이사회 개인청원사건···································· 17
1. 손종규 사건······························································· 18
2. 김근태 사건······························································· 19
3. 박태훈 사건······························································· 19
4. 강용주 사건······························································· 20
5. 신학철 사건······························································· 21
6. 이정은 사건······························································· 21
7. 윤여범 ․ 최명진 사건······················································· 22
8. 모하메드 아자즈와 아미르 자밀 사건········································ 23
9. 남기정 사건······························································· 23
10. 사례의 특징······························································ 23
Ⅹ. 결 론····································································· 24
표목차
[표1-1] ｢시민적·정치적권리규약선택의정서｣에 따른 한국 관련 개인통보사건의 통계
[표2-1] 우리나라 주요 국제인권협약 가입현황 |
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Ⅰ. 서설
전통국제법 하에서 개인은 단지 특정국가의 시민으로서만 고려의 대상이 되었다. 예컨대, 개인이 외국정부로부터 손해를 입은 경우, 그의 이익은 그의 본국(국적국가)이 외교적 보호권을 행사하기로 결정하는 범위 내에서만 보호 받을 수 있었으며, 이 같은 이론은 지금 까지도 대체로 타당하다. 뿐만 아니라 국가의 자국민에 대한 대우는 순전히 국내문제로 인식되었으며 따라서 국제법은 여기에 관여하지 않았다. 요컨대, 개인은 그들이 속한 국가의 단순한 부속물, 다시 말해서 국가이익(state interests)이 명령하는 바에 따라 사용되거나, 보호되거나 또는 희생될 수 있는 국가수중의 단순한 불모였던 것이다. 이렇듯 개인과 법인(회사)은 국제법의 주체인 국가의 부속물이었고, 개인과 법인 자체는 국제법의 주체가 될수 없었고 인권을 단순히 국내문제로 간주하였다. 그러나 제2차 세계대전이후 대전의 참화를 경험한 국제사회는 국제평화와 안전의 유지를 위한 인권의 중요성을 인식하여 국제연합헌장을 비롯한 국제 문서에 인권조항을 삽입하기에 이르렀다. 국제공동체는 1945년 UN현장상의 여러 인권규정과 1948년 세계인권선언의 일반원칙들을 법적 구속력 있는 문서에 담을 필요성에 동의하여 1966년에 “경제적·사회적·문화적 권리에 관한 국제규약”-사회권규약(International Covenant on Economic, Social and Cultural Right)과 “시민적·정치적 권리에 관한 규제규약”-자유권규약(International Covenant on Civil and Political Rights)(및그 선택의정서)이 UN총회에서 채택되었다. 그리고 이들 규약은 35개국이 비준을 완료한 1976년 각기 발효하였다. 우리나라는 1990년 4월 10일 이들 세 문서 모두(즉두 규약 및 후자의 선택의정서)에 가입하였고 그해 7월 10일 발효하였다 이두조약은 (사회권·자유권규약) 형식적 측면에서 중대한 차이를 가지고 있다. |
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참고문헌
< 단 행 본 >
김대순, 「국제법론」, 삼영사, 2007
정인섭, 「국제인권규약과 개인통보제도」, 사람생각, 2000.
최재훈 외 5인 공저, 「국제법신강」, 신영사, 2004.
< 논 문 >
김태천, “국제인권규약(B)의 국제적 실시조치”, 국제법학회논총, 제40권 제2호, 1995.
김태천, “국제인권규약의 개인청원제도”, 배재식박사고희기념논문집, 1998.
박찬운, “국제인권조약의 국내적 효력과 그적용을 둘러싼 몇 가지 고찰”, 법조협회논문집, 2007.
이근관, “국제인권규약상의 개인통보제도와 한국의 실행”, 국제인권법 제3호, 2000.
이근관, “국제인권규약상의 개인통보제도와 한국의 실행”, 국제인권규약가입 10주년 기념학술회의 중,2004.
이해성, “국제인권규약상의 개인청원제도”, 단국대학교 대학원, 2005.
정인섭, “국제인권규약의 국제적 실천제도 운영 현황”, 국제인권규약 채택 30주년 기념 학술대회, 1996.
< 자 료 집 >
법무부, 「국제인권규약상 개인통보의 국내구제방안 연구」, 법무부 인권과, 2005.
< 인 터 넷 >
법무부 인권국 ; http://www.hr.go.kr/ 자유게시판 12번.
양심에 따른병역거부실현과대체복무 개선을 위한 연대회의 ; http://corights.net/main.php 자료실 189번.
유엔인권이사회결정문(이정은씨한총련사건) ; http://blog.naver.com/kdi062?Redirect=Log&logNo=120018727970 네이버 블로그.
자주민보.NET ; http://www.jajuminbo.net/news/print_view.php?doc_num=2039 웹 기사 |
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2011.06.02
37페이지
