국방부장관의 불온서적 영내 반입금지 지시에 대한 헌법소원 제기를 이유로 한 군법무관에 대한 징계처분 등의 효력

Abstract

The subject case revoked the disposition of disciplinary action, which was imposed on the Plaintiff, a judge advocate general’s corps officer, or a military advocate, on the ground that he brought a constitutional complaint along with other military advocates against the order issued by the Minister of National Defense, which banned bringing seditious books into military barracks. In the instant case where a soldier’s duty to obey and a citizen’s right to a trial appear to conflict on the surface in that the subject of the constitutional complaint is the order of the Minister of National Defense, who is a superior, the Supreme Court determined that the pertinent constitutional complaint did not violate a soldier’s duty to obey, in light of the fact that: (i) the purpose of exercising the right to a trial was not directed toward disobeying the instant order; and (ii) the instant order excessively restricted ordinary soldiers’ spiritual fundamental rights, that is, freedom to read, and carried a presumption of unconstitutionality, and thereby setting forth the standard for determining when exercising the right to a trial does not constitute a violation of the duty to obey. Moreover, the subject case concluded that not having followed internal procedures requiring military personnels to make a proposal prior to seeking external resolution, which is not stipulated as a legal requirement, cannot constitute grounds for disciplinary action, thereby affirming that the principle of statutory reservations pursuant to Article 37(2) of the Constitution must be complied with even in a case where a person whose fundamental rights are restricted is a member of the armed forces. In addition, the pertinent case confirmed the existing legal principle that a “collective action committed for purposes other than military service” means any activities that undermine military discipline or violate one’s duty as military personnel, and proposed the standard of determining what constitutes such a collective action.