절차적 적법절차의 적용방법The Procedures Required by Procedural Due Process
- Other Titles
- The Procedures Required by Procedural Due Process
- Authors
- 윤영미
- Issue Date
- 2007
- Publisher
- 안암법학회
- Keywords
- 절차적 적법절차; 고지; 청문; 형량심사; procedural due process; notice; hearing; balancing test; procedural due process; notice; hearing; balancing test
- Citation
- 안암법학, v.통, no.25, pp.99 - 124
- Indexed
- KCI
OTHER
- Journal Title
- 안암법학
- Volume
- 통
- Number
- 25
- Start Page
- 99
- End Page
- 124
- URI
- https://scholar.korea.ac.kr/handle/2021.sw.korea/125835
- ISSN
- 1226-6159
- Abstract
- Procedural due process guarantees fair procedures when government deprives an individual of life, liberty or property. Generally and essentially, procedural due process requires that a meaningful opportunity to be heard must be afforded to the individual. Procedural due process plays a role in preventing arbitrary or unilateral deprivations of liberty or property through this requirement. However, the Supreme Court of U.S.A. applies a flexible procedural due process standard whereby balancing test is employed on a case-by-case basis to determine what particular process is due in a given situation.
Constitutional Court of Korea also applies a similar flexible balancing test. A predetermination process is important, but it is not regarded necessary in some cases. Although this balancing test enables fair and inexpensive procedural protections of wide range of interests, the problem of uncertainty and disparity that is accompanied in the course of application is yet to be solved. The Constitutional Court needs to give more structure to the balancing test and clarify the relationships between procedural due process and other constitutional protections.
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Collections - Graduate School > School of Law > 1. Journal Articles
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