해방 이후의 포고에 대한 헌법적 분석과 평가

Abstract

The U.S. military, which divided and occupied the Korean Peninsula after the Liberation of Korea on August 15, 1945, issued so-called ‘the MacArthur Proclamation’, which established the U.S. military government and initiated military rules in the southern part of the Korean Peninsula. During the historical transition period after the establishment of the Korean government, martial law was declared in the name of restoring social order, and various ‘special measures’ were implemented based on the martial law proclamation. As such, it can be said that the legal form of ‘proclamation’ has been utilized in the development of the Korean government and constitution since the Liberation, but there has been insufficient constitutional analysis and evaluation of the legal nature and effect of such proclamations. This study aims to summarize various legal forms of proclamations, which have been used in connection with the Korean constitution since the Liberation, and to examine not only their legal nature also the constitutional standards for reviewing them. This article follows that it is necessary to distinguish between the U.S. Military Government Proclamation and the Martial Law Proclamation due to their differences in legal basis, nature, and function. U.S. military Government proclamations should be systematically recognized alongside other U.S. military Government statutes utilized to govern the Korean Peninsula. And the legitimacy of the legal norms applied in specific cases needs to be judged according to their actual function and role. In particular, the MacArthur Declaration is the basis for the establishment of the U.S. military government and has the highest normative status and character for military government operations. However, it is unconstitutional to use the MacArthur Proclamation in a trial even after the enactment of the Korean Constitutional Law. A proclamation of martial law means a public announcement of the extraordinary measures to be imposed during martial law enforcement. At the same time, it has the characteristic of the basis for the restriction on fundamental rights imposed by the extraordinary measures. Hence a proclamation of martial law must be justified by the legal basis and legitimacy of the act declaring martial law on which it is premised. Even if the declaration of martial law is justified in a formal aspect, its legitimacy must be verified by examining whether the martial law itself has an appropriate purpose and content, and whether it is necessary and compatible with fundamental human rights. From this perspective, a martial law declaration that does not comply with various formal and substantive constitutional principles is unlawful. In other words, even if a declaration of martial law is fomally legal, the martial law itself which is proclaimed can be unconstitutional and invalid if it violates in a variety of the principles of constitutional law.