군사법원의 민간인 재판권

Abstract

Tense confrontation has been ongoing about the issue of whether to continue or abolish the military courts. This study, however, won’t focus on that issue, military courts’ abolishment, but rather suggests the appropriate range of their jurisdictions over citizens that the military courts have in cases military courts are operated as special courts. Military courts operated as special courts have different systems compared to the civilian courts such as the Convening Authority and the Line-Officer Judge System that help carry out the specific duties of the military, the protection of national security and national defense. However, because of such features of the military courts as mentioned above, the military courts should not be allowed to judge the criminal cases of the general people but the exceptional cases that the Constitution allows, and, even in such cases, the exceptional article of the Constitoutin should be construed as limited as possible. Meanwhile, the Courts Martial Code doesn’t regulate the jurisdiction of the military courts of crimes such as PMC(private military company) or civilians accompanying overseas troops even though it seems suitable. . Because the Constitution expressly states that “citizens who are not on active military service or employees of the military forces shall not be tried by a court martial within the territory of the Republic of Korea”, it is possible under the current Constitution for PMC or other citizen accommanying overseas troops to be judged in a court martial established outside of the territory of the ROK by amending the Courts Martial Code. This paper suggests that some crimes committed by PMC, accompaning overseas troops, should also be judged by a court martial.