자살한 군인에 대한 국가의 책임

Abstract

In Korea, every young man needs to carry out mandatory military service. few of them could not return to their family because they killed themselves during the military service. Korean National Merit Law specifically provides suicide one of exclusion ground of man of merit. Recently Korean Supreme court hold that suicide is caused by military service and there are proximate cause of action between suicide and serving in military, the surviving families of the suicided soldiers could receive benefits as a person of national merit. Most of precedent, however, have held that the family of suicided soldier could not receive the benefit because suicide case with free will be excepted according to the law. This article agree with the conclusion of recent Court’s decision but uses different method and analyse the suicided soldier cases in the view of interpretations of law. If we believe that every human life has value and dignity, we need to deal any death of human with great importance and significance. Modern state which adopt substantial rule of law and due process has to bear heavier responsibility when the state has reducing human’s fundamental right such as drafting man to serve miliary regardless of his concent. The government should release the man at least the same condition as he entered a training camp to finish his duty. The government duty could be called underwriting responsibility or assumed responsibility. Compensation system of county relies on its economy condition and a national sentiment. Korea was one of poorest countries in the world but right now she came one of G20 and sends her army to protect other country’s peace and anti-piracy operation. This means Korea has enough economy condition to compensate the surviving family of a suicide. It is possible to adopt new interpretation approach in the area of public law for public interest so that government must do appropriate honorable treatment and compensate the death.