裁量準則에 관한 考察 慶熙大學校 大學院 法 學 科 鄭 寬 善

第3節 小結 ······················································································································ 37
1. 問題點 ····················································································································· 37
가. 裁量準則의 拘束力과 裁量行爲性 ································································· 37
나. 裁量準則의 適用 否認 可能性 ······································································· 38
2. 改善方案 ················································································································· 39
第4章 法規命令形式의 裁量準則의 法的問題 ······························· 41
第1節 法規命令形式의 裁量準則의 發生背景 ························································41
第2節 法規命令形式의 裁量準則의 法的 性質과 拘束力 ···································· 44
1. 論議의 實益 ··········································································································· 44
2. 法律에 委任根據가 없는 境遇 ··········································································· 45
가. 學說의 立場 ······································································································· 45
나. 檢討 ····················································································································· 46
3. 法律에 委任根據가 있는 境遇 ··········································································· 47
가. 學說 ····················································································································· 47
나. 大法院 判例의 態度 ························································································· 47
第3節 加重․減輕規定 ······························································································ 52
1. 減輕規定의 態樣 ··································································································· 52
가. 減輕要件에 따른 分類 ····················································································· 52
나. 減輕範圍에 따른 分類 ····················································································· 53
다. 加重을 함께 規定한 境遇 ··············································································· 53
2. 減輕規定과 裁量準則의 法的 效力 ··································································· 54
가. 減輕規定을 두지 않은 裁量準則의 法的 效力 ··········································· 54
나. 減輕의 下限을 정한 裁量準則의 法的 效力 ··············································· 54
다. 減輕規定을 適用하지 아니한 裁量準則의 法的 效力 ······························· 54
라. 減輕規定만을 둔 裁量準則의 法的 性質 ····················································· 55
第4節 法規命令形式의 裁量準則 統制 ···································································· 55
1. 司法的 統制 ··········································································································· 55
가. 直接的 統制 ······································································································· 55