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공익입법매뉴얼
-세상을 바꾸는 공익 입법 , 어떻게 만들어지나
주최: 법조공익모임 나우
주관: 공익변호사모임
<차 례>
공익입법매뉴얼 제작발표회 개회사 ·········································································· ⅴ
여는 글 ······················································································································· ⅶ
Ⅰ. 공익입법운동 방법론 일반 ·················································································· 1
1. 왜 ‘공익입법운동’인가? ······················································································ 1
(1) 공익입법운동의 개념 ····················································································· 1
(2) 공익입법운동의 기능 ····················································································· 2
1) 국민 의사의 구현 ························································································ 2
2) 국회 입법활동의 전문성·효율성 보완 ························································ 3
3) 법체계와 사회현실 간 모순 해결 ······························································· 3
4) 국회 입법에 대한 국민의 영향력 제고 ····················································· 4
5) 대의민주주의 보완 ······················································································ 5
(3) 공익입법운동의 방식 ····················································································· 6
2. 입법에서의 공익단체의 역할 ·············································································· 6
(1) 표출되지 않은 갈등을 표면화시키는 역할 ··················································· 6
(2) 문제해결의 대안 제시 역할 ·········································································· 7
(3) 정책의제에 대한 교육자 역할 ······································································ 8
(4) 입법 담당자에 대한 설득 역할 ····································································· 8
(5) 제·개정된 입법의 집행감시 역할 ·································································· 8
3. 운동의 주체 및 자원 ·························································································· 9
(1) 입법운동 주체의 역할 및 활용 ····································································· 9
(2) 운동주체들의 참여와 자원의 동원 ····························································· 10
(3) 언론의 역할 ································································································· 13
(4) 참여주체에 대한 평가 및 검토 ··································································· 13
4. 시민사회 입법운동의 사례 ·············································································· 14
(1) 상가임대차보호법 입법 운동(2000~2001년) ············································· 14
(2) 증권집단소송법 입법운동(2000~2003년) ·················································· 15
(3) 국민기초생활보장법 입법운동(1998~1999년) ··········································· 16
(4) 부패방지법 입법운동(1995~2001년) ·························································· 17
Ⅱ. 입법 단계별 대응 ······························································································· 19
1. 법률 제개정 절차 ······························································································ 19
(1) 정부입법 ······································································································· 19
1) 법령의 입법 절차 ······················································································ 19
2) 단계별 절차 요약 ······················································································ 20
(2) 국회입법 ······································································································· 22
2. 정부입법대응 ····································································································· 23
(1) 입법예고 단계 ······························································································ 23
(2) 규제심사 단계 ······························································································ 23
(3) 신문고의 활용(상기효과) ············································································· 24
(4) 유선질의 및 방문 의견전달 ········································································ 24
(5) 행정규칙의 경우 ·························································································· 25
1) 절차 ············································································································ 25
2) 대응 ············································································································ 25
3. 의원입법대응 ····································································································· 25
(1) 발의단계 ······································································································· 26
1) 입법 준비 ··································································································· 26
2) 법률안 입안 ······························································································· 30
(2) 법률안 제출 단계 ························································································ 36
(3) 본회의 보고 및 위원회 회부 단계 ····························································· 37
(4) 위원회 심사 단계 ························································································ 38
1) 위원회 상정 ······························································································· 38
2) 제안자 취지 설명 ······················································································ 39
3) 전문위원 검토보고 ···················································································· 39
4) 대체토론 ····································································································· 41
5) 공청회 또는 청문회 ·················································································· 41
6) 소위원회 회부 ··························································································· 41
7) 위원회 의결 ······························································································· 42
8) 기타 ············································································································ 44
(5) 법제사법위원회 단계 ················································································· 44
1) 원칙 ············································································································ 44
2) 법사위 단계에서 염두할 사항 ·································································· 45
3) 법사위 제2소위의 활용 ············································································· 45
4) 법사위에서 통과되지 않는 법안의 경우 슬림화 추진 ···························· 46
(6) 본회의 이후 ······························································································ 47
Ⅲ. 입법된 이후의 대응 ··························································································· 49
1. 대통령령 및 총리령․부령 대응 ········································································· 49
(1) 대통령령 및 총리령․부령 입법절차 ····························································· 49
(2) 대통령령 및 총리령․부령 제‧개정 단계의 지형 ·········································· 50
(3) 대통령령 및 총리령․부령 제‧개정안 및 해설서 마련 ································· 51
(4) 국회를 통한 관련 정부부처에 대한 의견 개진 ········································· 53
(5) 정부 대통령령 및 총리령․부령안 입법예고와 의견 개진 ·························· 55
(6) 정부 주최 공청회 개최 ··············································································· 55
(7) 법제처에 대한 의견 개진 ············································································ 56
2. 법 시행 후 대응 ······························································································ 57
Ⅳ. 법안 성안 작업 ·································································································· 61
1. 법안 입안의 기본 원칙 ····················································································· 61
(1) 공익입법운동에 있어 법안 입안 원칙의 문제 ··········································· 61
(2) 법안 입안의 실제 원칙들 ············································································ 61
1) 법안 내용 구성을 위한 법제연구 원칙 ··················································· 61
2) 법제의 준칙 ······························································································· 62
3) 법안 입안의 최고 기준으로서 헌법원칙 ·················································· 63
2. 법안 입안의 세부요령(실제) ············································································· 67
(1) 장애인차별금지 및 권리구제 등에 관한 법률 (이하, ‘장차법’) ··············· 67
1) 장차법 목차 ······························································································· 67
2) 장차법 뜯어보기 ························································································ 67
(2) 난민법 ··········································································································· 87
1) 난민법, 입법의 시작 ················································································· 87
2) 난민법, 입법의 과정 ················································································· 89
3) 난민법, 법안 성안의 실제 ········································································ 90
4) 제5조 이하, 적법절차의 강화 ··································································· 93
5) 난민법 입법운동과 법안 성안에서 배워야 할 것 ··································· 94
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