군 사법제도 개혁의 요청과 군사법원의 발전방향

Abstract

It is clearly stipulated in the Article 5 of the present Constitutional Law that the Armed Forces shall be charged with the sacred mission of guarding the national security, ensuring the defense of the land and their political neutrality should be maintained. As expressly stated, the basic and foremost task of the armed forces is to secure the sacred mission of national security and the defense of the land. Regarding these purposes, the armed forces must have a special interest in the discipline and training within the military system to secure the strong defense capabilities and war-deterrent forces. The armed forces require direct obeyance of the hierarchy in the system to observe the order of the superior officer. Therefore, the internal order of the armed forces cannot help being constructed as the system of command and obedience even in the most democratized country Due to the characteristics of the armed forces, its organization and activities need the special legal regulation to be treated differently from the general public. The protection of military secrets and the Military Installation & Military Facilities Protection Act exists, besides which the crimes within the armed forces are strictly subjected to the military criminal law, not the general one. Moreover various statutes regarding the armed forces specify the special rules applied to the military system. The court-martial is connected with the distinct characteristics of the military -related statutes. It is the special court established to apply them. It is to make the military judge well-conversed with the distinct characteristics of the armed forces, considering the special situation of military, applying the military-related statutes - different from the statutes applied to the civilians outside of the armed forces. However the application of special rules according to the characteristics of military, and the special judiciary system through the court-martial has caused negative side-effects. So, the request of reforming the military judiciary system has been presented in recent years. Especially the strong argument to abolish the court-martial has brought sharply dissenting opinions. Although it seems to be necessary to improve the constitution and the management of the court martial according to the request of reforming the military judiciary system, the plan to abolish the court martial, the military prosecution and the method to enable the general court & the prosecutor to handle the military case is evaluated as inadequate at the present time. The realistic and practical alternative is to rationalize the court martial in the premise of its retention. For this purpose, the system which the superior officer can participate in the judgement of military case should be abolished through the revision of law of court martial and its supplement by new institutions should be concentrated on the premise of securing the objectivity and fairness of judgement which is the essential part of justice. If the trust of people in the military justice is elevated through this measure, the pressure of its reform can be lowered substantially.