경찰행정법 주관식 실력탄탄 1: 기본서(단문·사례) : 2024년 경찰승진 시험대비
경찰행정법 주관식 실력탄탄1
ㅣ 강동호
ㅣ
경찰공제회
제휴몰 주문 시 고객보상, 일부 이벤트 참여 및 증정품 증정, 하루/당일 배송에서 제외되므로 참고 바랍니다.
“서술형식으로 된 경찰행정법 기본서”로 자리매김하기 위해, 단문을 130개로 대폭 보강하였다. 사례는 50개로 고시기출 사례를 추가하였고, 대법원 판례로 된 사례 문제의 최근 출제경향을 반영하여, 각 파트별 대법원 판례 모음집을 수록함으로써, 실탄1, 2의 연계성을 강화시켰다.
Ⅰ부:단문
행정법의 기초이론 / 행정입법
01. 법치행정의 원칙(법률적합성의 원칙) ·································2
02. 법률유보의 원칙 : 13년 기출·················································5
03. 행정법의 일반원칙·····························································7
04. 부당결부금지의 원칙 : 07년 기출·······································10
05. 자기구속의 원칙 : 10년 기출··············································12
06. 신뢰보호의 원칙 : 11년 기출··············································14
07. 비례의 원칙 : 08년 기출·····················································17
08. 공법관계와 사법관계(공법과 사법의 구별) : 19년 기출·······19
09. 행정사법··········································································21
10. 행정법에 대한 사법규정의 적용(행정법의 흠결과 보충) ··23
11. 사인의 공법행위······························································25
12. 사인의 공법행위로서의 신고 : 21년 기출····························27
13. 신고와 신청의 비교(구별) ·... ···············································30
14. 개인적 공권·····································································32
15. 무하자재량행사청구권·····················································35
16. 행정개입청구권(경찰개입청구권) : 09년 기출·····················38
17. 특별권력관계(특별행정법관계) ·········································40
18. 통치행위··········································································43
19. 공무수탁사인 : 20년 기출···················································46
20. 법규명령 : 12년 기출··························································48
21. 행정규칙··········································································51
22. 훈령·················································································53
23. 법규명령 형식의 행정규칙 : 22년 기출·······························57
24. 행정규칙 형식의 법규명령 : 09년 기출·······························59
25. 법규명령형식의 행정규칙과 행정규칙형식의 법규명령····61
행정행위 / 그 밖의 행정의 행위형식
26. 행정행위의 개념······························································66
27. 일반처분 : 13년 기출··························································69
28. 행정행위의 특수성(행정행위의 효력) ·······························71
29. 기속행위와 재량행위 : 15년 기출·······································73
30. (불확정 개념과) 판단여지 : 12년 기출································76
31. 복효적 행정행위 : 16년 기출··············································78
32. 명령적 행정행위······························································80
33. 하명(경찰하명) : 16년 기출·················································82
34. 허가(경찰허가) : 21년 기출·················································84
35. 예외적 승인(예외적 허가) ················································87
36. 형성적 행정행위······························································89
37. 특허·················································································91
38. 허가와 특허의 구별··························································93
39. 준법률행위적 행정행위····················································95
40. 공정력과 구성요건적 효력(공정력과 선결문제) ················98
41. 행정행위의 존속력·························································102
42. 행정행위의 하자 일반론················································104
43. 행정행위의 무효와 취소(무효와 취소의 구별) ················108
44. 위헌법률에 근거한 처분의 효력·····································111
45. 하자의 치유 : 14년 기출···················································113
46. 하자의 전환···································································115
47. 하자의 승계···································································117
48. 행정행위의 직권취소 : 18년 기출·····································119
49. 직권취소와 쟁송취소의 비교·········································122
50. 행정행위의 철회 : 11년 기출············································124
51. 직권취소와 철회의 비교(구별) ·······································127
52. 부관의 가능성과 한계····················································129
53. 부관의 종류과 한계·······················································131
54. 하자있는 부관에 대한 쟁송············································133
55. 부담 : 10년 기출·······························································135
56. 단계적 행정결정····························································137
57. 확약···············································································140
58. 행정계획········································································142
59. 행정의 자동결정(자동적 처분) : 22년 기출·······················145
60. 공법상 계약···································································147
61. 행정상 사실행위····························································150
62. 행정지도 : 08년 기출························································153
행정절차법 / 정보공개법
63. 절차상 하자의 효력 : 20년 기출·······································158
64. 이유제시 : 15년 기출························································161
65. 사전통지와 의견제출·····················································164
66. 청문···············································································167
67. 공청회············································································170
68. 정보공개청구권 : 17년 기출··············································173
행정의 실효성 확보수단
69. 강제집행········································································178
70. 행정대집행(대집행) : 06년 기출········································181
71. 강제징수········································································185
72. 이행강제금(집행벌) ························································187
73. 직접강제········································································190
74. 즉시강제 : 14년 기출························································192
75. 행정벌(경찰벌) ·······························································195
76. 행정형벌········································································198
77. 행정질서벌(행정질서벌의 특수성) ··································200
78. 행정의 새로운 의무이행(실효성) 확보수단····················203
79. 행정상 공표(명단공표, 위반사실의 공표) : 07년 기출·······207
80. 과징금············································································209
81. 공급거부········································································211
82. 행정조사(행정조사의 한계와 구제) ································213
행정쟁송
83. 행정소송의 한계(행정재판권의 한계) ·····························218
84. 의무이행심판·································································221
85. 무효등확인소송······························································223
86. 부작위위법확인소송·······················································226
87. 무명항고소송·································································229
88. 당사자소송·····································································231
89. 원처분주의와 재결주의··················································233
90. (취소소송의) 대상적격···················································235
91. (취소소송의) 원고적격···················································238
92. (취소소송의) 협의의 소익··············································240
93. (취소소송의) 피고적격···················································242
94. (취소소송의) 제소기간···················································244
95. 행정심판전치주의··························································246
96. 처분사유의 추가, 변경···················································248
97. 가구제(집행정지와 가처분) : 17년 기출····························251
98. 행정청의 부작위에 대한 권리구제·································254
99. 거부처분에 대한 권리구제·············································258
100. 사정판결 : 18년 기출······················································260
101. 취소판결의 기속력·······················································262
102. 행정쟁송법상 간접강제················································264
103. 취소판결의 기판력(판결의 확정력) ······························266
104. 행정심판의 재결(재결의 종류) ·····································268
105. 재결의 기속력······························································271
106. 행정심판법상 재처분의무 실효성 확보수단·················273
107. 행정심판의 고지제도···················································275
행정상 손해전보
108. 국가배상법 제2조의 국가배상청구권(성립요건) ···········278
109. 국가배상법 제2조의 성질············································282
110. 법령해석의 하자와 공무원의 과실·······························286
111. 국가배상법 제5조의 배상책임(영조물 책임) ················288
112. 국가배상법 제6조의 비용부담자··································290
113. 국가배상법상 배상책임자············································292
114. 국가배상청구의 제한(이중배상금지원칙) : 23년 기출·····294
115. 손실보상(손실보상청구권) ···········································296
116. 수용유사적 침해이론···················································299
117. 수용적 침해이론··························································301
118. 희생보상이론(희생보상청구권) ····································303
119. 결과제거청구권····························································305
경찰행정법
120. 경찰권 발동의 근거·····················································308
121. 경찰권 발동의 한계·····················································310
122. 일반적 수권조항(개괄적 수권조항) : 06년 기출··············312
123. 경찰책임의 원칙 : 23년 기출··········································314
124. 경찰책임의 승계··························································317
125. 제3자 경찰책임(경찰긴급권) ········································319
126. 불심검문······································································321
127. 무기사용······································································324
128. 위험방지를 위한 출입··················································327
129. 보호조치······································································330
130. 위험발생방지조치와 범죄의 예방과 제지·····················333
Ⅱ부:사례
행정법의 기초이론 / 행정입법
01. 행정법의 일반원칙 case ················································336
(즉시강제, 절차상 하자, 자기구속？신뢰보호？비례원칙)
02. 특별권력관계 case ························································343
(특별권력관계, 판단여지, 하자의 승계, 행정심판전치)
03. 별표 case ······································································349
(법규명령형식의 행정규칙, 부당결부금지원칙, 비례원칙)
04. 별표 case ······································································356
(법규명령형식의 행정규칙, 신뢰보호원칙, 주체상 하자)
05. 별표 case ······································································363
(법규명령형식의 행정규칙, 판단여지, 행정심판전치)
06. 법령보충적 행정규칙 case ············································371
(행정규칙형식의 법규명령, 협의의 소익, 취소소송의 기판력)
07. 행정개입청구권 case ····················································378
(일반적 수권조항, 경찰개입청구권, 권리구제)
08. 행정개입청구권 case ····················································385
(행정개입청구권, 국가배상책임의 성립요건)
09. 통치행위 case ·······························································390
(통치행위 인정여부, 사법심사 가능성)
10. 신고와 신청, 허가와 예외적 승인 case ·························393
(신고와 신청, 허가와 예외적승인, 예방적 부작위소송)
행정행위 / 그 밖의 행정의 행위형식
11. 직권취소 case ·······························································400
(직권취소, 직권취소의 취소와 원행정행위의 효력)
12. 부관 case ······································································405
(행정재산의 목적외 사용, 부관)
13. 부관 case ······································································412
(부관, 사후부관, 철회의 제한)
14. 행정계획 case ·······························································417
(행정계획의 법적성질, 계획변경청구권)
15. 행정계획 case ·······························································422
(행정계획의 법적성질, 형량명령이론, 취소판결의 기속력)
16. 행정지도 case ·······························································427
(행정지도, 대상적격, 협의의 소익, 국가배상책임의 위법성)
17. 선결문제 case ·······························································432
(가중적 제재처분과 협의의 소익, 민사법원과 선결문제)
18. 선결문제 case ·······························································439
(무효와 취소, 하자의 치유와 전환, 형사법원과 선결문제)
19. 정보공개 case ·······························································446
(청구권자, 비공개정보, 권리구제수단, 시민단체의 청구권)
20. 정보공개 case ·······························································454
(청구권자, 비공개정보, 처분사유의 추가？변경, 비공개사유)
행정절차법 / 정보공개법
21. 절차상 하자 case··························································462
(이유제시, 의견제출, 하자의 치유, 절차상 하자)
22. 공무원 임용결격 case ···················································468
(무효？취소의 구별, 하자의 치유？전환, 당연퇴직,
퇴직연금 지급청구 가능성)
23. 시보임용 / 징계 / 사실상 공무원이론 case ··················477
(시보임용의 효력, 정규임용취소처분의 위법성,
해임처분의 구제수단, 사실상 공무원 이론)
24. 위헌법률에 근거한 처분의 효력 case ···························484
(위헌결정의 소급효, 위헌법률에 근거한 처분의 집행력)
행정의 실효성 확보수단
25. 대집행？계고 case ·························································488
(대집행, 하자의 승계, 실력행사 가능성)
26. 대집행？계고 case ·························································495
(반복된 계고와 취소소송의 대상, 하자의 승계)
27. 즉시강제 case ·······························································500
(즉시강제, 국가배상법 제2조, 선택적청구 가능성)
28. 즉시강제 case ·······························································507
(즉시강제, 경찰긴급권)
29. 행정조사 case ·······························································513
(행정조사, 영장주의, 실력행사가능성, 위법 조사에 따른 처분)
행정쟁송
30. 취소소송의 제기요건 case ············································520
(대상적격 : 횡단보도설치, 벌점부과, 정년퇴직인사발령,
의약품조달계약)
31. 원처분주의와 재결주의 case ·········································527
(행정심판전치, 재결의 효력, 취소소송의 대상과 제소기간)
32. 경업자소송 case···························································534
(경업자소송, 사정판결, 인용재결에 대한 취소소송-제3자)
33. 경원자소송 case···························································539
(경원자소송, 처분사유의 추가？변경, 취소판결의 기속력,
하자치유, 신뢰보호원칙)
34. 취소판결의 기속력 case················································546
(사전통지, 거부처분과 집행정지, 취소판결의 기속력)
35. 취소판결의 기속력 case················································551
(간접강제, 취소판결의 기속력, 경과규정과 기속력)
행정상 손해전보
36. 국가배상 case ·······························································558
(국가배상법 제2조, 공무원에 대한 구상권)
37. 국가배상 case ·······························································563
(국가배상법 제2조, 공무원에 대한 구상권, 선택적청구가능성)
38. 국가배상 case ·······························································569
(국가배상법 제2조, 제5조의 경합, 배상책임자)
39. 국가배상 case ·······························································576
(직접강제, 손실보상, 국가배상법 제2조, 국가에 대한 구상권)
40. 자배법？이중배상금지 case ···········································584
(자배법상 배상책임, 이중배상금지와 구상권)
41. 손실보상 case ·······························································589
(경찰공공의 원칙, 경찰비례의 원칙, 손실보상)
42. 희생보상청구권 case ····················································596
(손실보상청구권 성립요건, 희생보상청구권 성립요건)
43. 행정심판 case ·······························································598
(임시처분, 일부취소)
경찰행정법
44. 경찰책임 case ·······························································602
(행위책임, 상태책임, 경찰긴급권)
45. 경찰책임 case ·······························································605
(행위책임, 상태책임, 다수책임자 경합, 경찰긴급권)
46. 경찰책임 case ·······························································609
(경찰책임의 경합, 경찰긴급권, 제재적 처분사유의 승계)
47. 경찰책임 case ·······························································615
(경찰책임의 승계, 하자의 승계, 공법인의 형식적 경찰책임)
48. 경찰책임 case ·······························································620
(일반적 수권조항, 경찰긴급권, 경찰비례의 원칙)
49. 불심검문 case ·······························································626
(불심검문, 비례의 원칙, 선결문제, 판단여지, 하자의 승계)
50. 무기사용 case ·······························································633
(불심검문, 무기사용의 요건과 한계, 비례원칙)
Ⅲ부:판례·····································································641
Ⅳ부:부록
1. 연도별 기출문제·················································696
2. 주관식 답안지(양식)··········································714
01 Prologue
지난해 실탄 시리즈를 많은 분들이 사랑해주셔서 너무 감사했고, 올해 신간에는 그동안 여러분들로부터
받은 지지와 사랑만큼, 더욱 애정을 갖고 보강작업을 한바, 드디어 결실을 맺었습니다.
실탄1은 “서술형식으로 된 경찰행정법 기본서”로 자리매김하기 위해, ① 단문을 130개로 대폭 보강하고,
② 사례는 50개로 고시기출 사례를 추가하였고, ③ 대법원 판례로 된 사례 문제의 최근 출제경향을
반영하여, 각 파트별 대법원 판례 모음집을 수록함으로써, 실탄1, 2의 연계성을 강화시켰습니다.
실탄2는 “키워드 위주의 고득점 답안용 & 독학 수험생들을 위한 필독서”로 자리매김하기 위해, 강의
없이도 독학할 수 있도록, ① 독학 수험생들을 위한 ‘행정법 입문편(기초이론)’과 사례풀이를 위한
‘사례공략편(기본공식)’을 수록하였고, ② 두문자 및 내용을 통일성 있게 다듬었으며, ③ 최근 12개년
국가고시(변시？사시？행시 등) 기출을 총망라하여 출제될만한 모든 논점을 추가하고, 키워드는 더욱
보강하였습니다.
“수석 합격자도 시험 전날에는 주관식 때문에 불안해 한다.”는 오래전부터 수험가에서 내려오던 낭설을
깨뜨리고, 시험 전날에 오히려 주관식 때문에 자신감이 넘칠 수 있는 실탄 시리즈를 만들기 위해 노력
하였으며, 누구나 본 교재를 통해 짧은 기간(6개월 ~ 1년)을 집중적으로 공부하면 행정법 상위권 점수가
나올 수 있도록 시중 교재에서는 시도하지 못한 많은 부분을 접목시켜 수험시간을 단축시켰습니다.
책 시리즈의 이름인 ‘실탄’처럼 행정법 과목에 있어 여러분의 강력한 무기가 되길 바라며, 이 책의 출간을
위해 아낌없이 지원해준 저의 아내와 아이들(현서, 현준), 오현웅 교수님, 이미정 차장님을 비롯한
경찰공제회 관계자분들께 감사의 마음을 전하며, 지금 이 순간에도 치안현장에서 묵묵히 소임을 다하며,
수험생활을 병행하고 계신 동료 경찰분들의 영광스러운 합격을 진심으로 기원합니다.
2023년 1월
편저자 강 동 호
강동호 [저]
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