제주 4.3항쟁과 국가 폭력에 대하여 - 계엄선포와 형벌권 행사의 불법성을 중심으로 -

Abstract

The rule of law is a principle that guarantees and protects the freedom and rights of community members by preventing shear exercise of power and abuse of power by requiring that power be exercised based on law. In other words, power can only be recognized if it is exercised based on the law. It is also a well-known fact that power should be exercised for the benefit of the power delegate, not for the benefit of the power person and the power group within the scope delegated by the delegate. In this way, the rule of law aims to limit the abuse of power and shear exercise, and to guarantee and protect individual freedom and rights. Therefore, the legitimacy of the exercise of power without legal grounds and the exercise of power only for the benefit of the powerful and powerful groups cannot be recognized, and in that case, the exercise of power is only an act of violence against community members. In addition, if a law for the purpose of only those in power and groups is enacted or revised, it is only a law for exercising power rather than a law for exercising power, only justifying the legal act of violence against community members. It is not just the rule of law, but the rule of power by law or through law. If so, the exercise of power without a legal basis or the exercise of power based on the law for the purpose of power alone will constitute an act of violence of power against community members. In this regard, the Rhee Syng-man regime's exercise of power during the Jeju 4.3 Resistance would be nothing more than a violent act of power against Jeju residents in that there was no legal basis and it was for power.