군사법제도와 헌법개정

Abstract

There are some provisions on military justice in the Constitution of South Korea. From the standpoint of democratic judicial system, the reform of the military justice requires the provisions to be amended. In this article, I tried to make some suggestions looking for a proper amendment to the current constitutional provisions on military justice. Firstly, since it is very difficult for me to find any reason why a military tribunal should be operated in peaceful era, I personally believe that the operation of military tribunal would be justifiable only for the cases of wartime, long-term dispatch of military to foreign countries, and long term ship-boarding in the fleet. Currently, the Supreme Court is designated as the final instance of military tribunal. However, I believe that it would be more desirable if we allow a person, who doesn't like the decision of the military tribunal, to have an opportunity to appeal the case to the appellate level court which is to be the highest court to review questions of facts, and the appellate court of military tribunal should be under the higher civilian court in general. The army commender should not control any judicial decision, and jury trials or soldier-participating trial must be implemented. Even the whole country is under martial law, a single-trial justice should not be justifiable and all the cases decided by military tribunals should be appealable to the supreme court. Especially, we should reflect on ourselves from our tragic history that citizen's right to life and liberty had been severely violated under the single-trial military tribunal during the authoritarian past. Finally, even in case that martial law is proclaimed, military tribunal should not have any jurisdiction over crimes committed by the ordinary citizens and the crimes committed before the date of the proclamation of martial law. In a country like ours where all adult males are liable for joining the armed forces, we should pay more attention to protect the human rights of them with the same standard which applies to the ordinary citizens.