헌법은 국가와 사회의 최고규범이다. 다양한 갈등의 현장에서 시시비비를 가리는 것은 국가와 사회의 질서를 안정적으로 확보하기 위해 중요한 과제이며 헌법은 국가권력은 물론 사회구성원에게 행동의 준칙을 제시한다. 따라서 다양한 헌법해석의 가능성을 이해하고 헌법의 규범적 의미를 확정하는 일은 동서고금을 막론하고 모든 국가의 핵심 과제이다. 헌법주석은 이런 과제를 위해 존재하는 헌법실무와 헌법연구의 지침서 역할을 한다.
한국헌법학회는 오래전부터 이러한 헌법주석사업의 중요성을 인식하여 헌법주석서 발간을 기획하고 실행해 왔다. 2007년과 2009년까지 3년간 법제처의 연구용역사업의 일환으로 헌법주석에 관한 연구보고서를 제출하였고 이 보고서는 법제처에서 연구사업 결과 활용의 차원에서 자료집으로 배포되었다. 하지만 아무래도 연구용역보고서의 목적으로 준비되다 보니 본격적인 학술적 주석서로서의 성격은 제한적일 수밖에 없었다. 제19대 학회장인 연세대 법학전문대학원의 전광석 교수가 이 보고서를 기초로 학회 차원에서 정통주석서로 발전시켜 공간하는 사업을 추진하였다. 김문현 이화여대 법학전문대학원 교수를 위원장으로 하는 간행위원회를 구성하고 실무작업을 위해 전광석 회장이 직접 위원장을 맡는 실무위원회를 두어 2013년 12월 우선 전문, 제1장 총강, 제2장 국민의 권리와 의무에 관한 부분을 <헌법주석 I>의 이름으로 공간하였다. 전광석 회장의 퇴임 이후에도 간행위와 실무위를 중심으로 제3장 이후 부분에 대한 주석사업이 지속되었으나 <헌법주석 I>의 해당 부분과는 달리 장별, 조문별로 서로 연계된 부분이 많아 다수의 집필진을 조율하는 작업의 높은 난이도 때문에 사업이 지지부진하였다. 이런 어려움 속에서도 전체적인 통일성을 희생하더라도 주석서를 일단 공간하는 것만으로도 의미있는 일이라는 판단으로 사업이 독려되었고 여러 집필자의 열성 어린 노고 덕분에 2016년 원고 초고가 일단 수합되었다. 그러나 출간비용을 마련하지 못하여 공간사업은 또다시 지연될 수밖에 없었다. 2017년 제23대 학회 집행부가 출범하면서 이 사업을 더 이상 지연시킬 수 없다고 판단하여 여러 방안을 모색하는 가운데 다행스럽게도 홍진기법률연구재단의 학술서 발간사업의 지원을 받아 ？유민총서(維民叢書)？로 발간할 수 있게 되었다.
이처럼 다년간의 우여곡절 끝에 <헌법주석 I> 이후의 헌법 조문들에 대한 주석을 마무리하다 보니 부족하고 아쉬운 점이 적지 않다. 무엇보다 ？유민총서？로 발간되다 보니 <헌법주석 II>라는 서수를 사용하는 책 제목을 사용하지 못하게 되었다. 사업의 성격이나 집필진의 구성 등 어느 면을 보더라도 이 책은 <헌법주석 I>과 함께 그 후속편으로 읽힐 필요가 있다. 또한, 앞서 언급한 대로 오랜 기간 다수의 집필진이 참여한 조건이나 복합적으로 얽혀있는 조문 간의 관계 때문에 중복된 영역이나 일관성과 통일성 면에서 보완이 필요한 부분도 없지 않다. 한편 출간이 지연되면서 초고 이후의 판례 및 입법이나 학술적 연구가 충분히 반영되지 못한 부분도 눈에 띈다. 하지만 불모지에 씨앗을 뿌리는 취지로 추진된 헌법주석사업의 애초 목적에서 볼 때 이러한 모든 아쉬움에도 후속 사업을 위한 주춧돌을 놓은 커다란 의미가 있다고 자부한다.
오랜 기간의 주석사업이 뒤늦게 빛을 보게 된 것은 많은 사람의 열성과 헌신이 아우러진 결과일 수밖에 없다. 헌법주석사업의 기획단계부터 완간까지를 함께하시는 노고를 아끼지 않으신 김문현, 전광석 두 분 위원장님께 경의의 마음을 전하지 않을 수 없다. 그 오랜 기간 실무지원을 맡아 번잡한 일을 마다하지 않은 김종철 연세대 법학전문대학원 교수와 김현귀 헌법재판연구원 책임연구관의 노고도 기리지 않을 수 없다. 그러나 가장 감사하고 기억해야 할 부분은 충분한 지원이 없는 상황에서도 오로지 헌법주석사업의 취지에 공감하여 묵묵히 집필에 참여해 준 한국헌법학회 회원 여러분들이다. 이 모든 분의 성의와 희생이 모여 한국 헌법학이 더욱 발전되는 계기가 될 것으로 믿는다. 아울러 이번 사업이 유종의 미를 가질 수 있도록 도움을 주신 홍진기법률연구재단의 홍석조 이사장님께도 무한한 감사의 말씀을 올린다. 재단이 목적으로 하는 선진법률문화의 진흥에 이 책이 조금이라도 기여하게 되기를 빈다.
지금 우리 사회는 헌법개정에 대한 공론이 진행 중이다. 국가기본법인 헌법이 시대의 요구에 맞도록 새 기운을 불어넣는 것 못지않게 중요한 것은 오랜 시간 축적해온 가치와 제도의 무게에 대한 깊은 성찰일 것이다. 현행 헌법에 대한 이번 주석이 그처럼 균형 잡힌 새 헌법 만들기에도 일조하게 되기를 바라마지 않는다.


저자 소개

이성환
법무법인 안세 대표변호사

방승주
한양대학교 법학전문대학원 교수

명재진
충남대학교 법학전문대학원 교수

박선영
동국대학교 법과대학 교수

정영화
전북대학교 법학전문대학원 교수

박종보
한양대학교 법학전문대학원 교수

장영수
고려대학교 법학전문대학원 교수

이상경
서울시립대학교 법학전문대학원 교수

정문식
한양대학교 법학전문대학원 교수

정극원
대구대학교 법과대학 교수

송기춘
전북대학교 법학전문대학원 교수

김상겸
동국대학교 법과대학 교수

김대환
서울시립대학교 법학전문대학원 교수

노기호
군산대학교 법학과 교수

전학선
한국외국어대학교 법학전문대학원 교수

임지봉
서강대학교 법학전문대학원 교수

김종철
연세대학교 법학전문대학원 교수

헌법주석 : 국회.정부

발간사
서문
집필자 명단
범례

헌법 제40조 ························································ 이 성 환
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헌법 제100조 ······················································ 김 종 철

헌법주석 : 법원.경제질서 등
발간사
서문
집필자 명단
범례

헌법 제101조 ······················································ 이 국 운
헌법 제102조 ······················································ 이 헌 환
헌법 제103조 ······················································ 석 인 선
헌법 제104조 ······················································ 이 헌 환
헌법 제105조 ······················································ 이 국 운
헌법 제106조 ······················································ 석 인 선
헌법 제107조 ······················································ 남 복 현
헌법 제108조 ······················································ 권 영 호
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헌법 제113조 ······················································ 권 영 호
헌법 제114조 및 115조 ········································ 박 종 보
헌법 제116조 ······················································ 박 종 보
헌법 제117조 ······················································ 방 승 주
헌법 제118조 ······················································ 방 승 주
헌법 제119조 ······················································ 전 광 석
헌법 제120조 ······················································ 김 현 귀
헌법 제121조 ······················································ 김 종 철
헌법 제122조 ······················································ 홍 완 식
헌법 제123조 ······················································ 홍 완 식
헌법 제124조 ······················································ 정 극 원
헌법 제125조 ······················································ 박 종 현
헌법 제126조 ······················································ 박 종 현
헌법 제127조 ······················································ 김 일 환
헌법 제128조 ······················································ 장 영 수
헌법 제129조 ······················································ 장 영 수
헌법 제130조 ······················································ 장 영 수