美國 憲法上 結社의 自由

• 영문명: The Freedom of Association in the U.S.A. Constitution
• 발행기관: 경희법학연구소
• 저자명: 尹 明 善(Yun, Myung-Sun)
• 간행물 정보: 『경희법학』제39권 제1호, 9~38쪽, 전체 30쪽
• 주제분류: 법학 > 민법
• 파일형태: PDF
• 발행일자: 2004.06.30

영문 초록

The freedom of association has been regarded to be essential in modern democratic nations. It functions as a mechanism to form political parties, labor unions and other social organizations on the one hand, and to protect minorities and social weak people on the other. Nevertheless, there is no provision to protect the freedom of association in the First Amendment of the U.S.A. Constitution. But in numerous cases, the Supreme Court has held that the freedom of association derives by implication from the explicitly-stated of speech, press, assembly, and petition. However, the freedom of association has not been broadly construed by the Court. All that has been recognized is a right to join with others to pursue goals independently protected by the First Amendment. The goals of this right include political advocacy, literary expression, and religious worship, among others. Since there is a special freedom of association only where the goals are independently protected by the First Amendment, there is no special freedom to engage in social association . The Court has also recognized a right not associate; that is, individuals have a constitutional rights not to be compelled to support most types of expressional activities by organizations of which they do not approve. Similarly, the government may not force you to disclose your membership activities, unless it could make that membership illegal. There are some exceptions to the general rule that associational activities that couldn t be outlawed directly, also can t be made the basis for public hiring, or benefit decisions. In general, these exceptions are for conduct which, although it includes protected expression, directed relates performance of the job. Government is not absolutely forbidden to impair the freedom of association, just as it is not absolutely forbidden to interfere with freedom of speech. However, before the government may significantly interfere with protected associational activity, two showings must be made: (1) that the governmental interest being pursued is a compelling one; and (2) that that interest cannot be achieved by means less restrictive of the freedom of association. In other words, strict scrutiny is normally applied. The equality principle is also applied; that is, one governmental interest that cannot be achieved without restrictions on the First Amendment freedoms, is the interest in preventing discrimination based on race, sex, and othed suspect criterion. There is an associational character in the freedom of association, so this freedom should be limited so as to be harmonized with other values, such as national security, social order, public moral and other s freedoms. Since 1950s, the Court has expanded the scope of this freedom on the influence of liberalism, but there are limitations in order to protect these values, however. In the 1960s, the civil rights movement had deployed peaceful demonstrations as a means to succeed in the movement nationwide, culminating in the use of civil disobedience . Thus, this article deals with the freedom of association - its definition, contents, and limitations - in terms of the Supreme Court decisions.

목차

Ⅰ. 머리말

Ⅱ. 結社의 自由의 一般的 法理論

Ⅲ. 結社의 自由의 具體的 內容

Ⅳ. 結社의 프라이버시

Ⅴ. 結社의 自由에 대한 制限

Ⅵ. 結 論

키워드

결사의 자유 수정 제1조 정당가입권 노동조합가입권 결사의 프라이버시