군형법에서 명령위반행위에 대한 구성요건의 개정방안

Abstract

Members of the Armed Forces are "citizens in uniform," and tens and thousands of such persons are subject to military criminal law. Thus, it goes without saying that military criminal law must strictly follow the basic principles of criminal law that apply to non-military citizens, such as the rule of law and the principle of "nulla poena sine lege." However, the current military criminal law is problematic in that many of its provisions may be void for vagueness, if the principle of "nulla poena sine lege" were to be strictly enforced. The special position that military criminal law occupies in our current justice system, which makes it less visible to both the academia and the general populace, probably accounts for the lack of efforts in resolving such problems. This article first analyzes problems in applying Article 47 of the military criminal code ("failure to obey order") with focus on the elements of the crime. In reality, Article 47 "failure to obey order" and Article 44 "insubordinate conduct" do seldom serve as grounds for punishment, considering the number of complaints raised. They rather serve as grounds for punishing deserters (in case fo Article 47) and conscientious objectors (in case of Article 44). There are also criticisms about these Articles' violating limits on delegated legislation, proportionality, and due process of the law. This article points out the vagueness in the relation between the elements of the current military criminal code and those in the disciplinary rules provided in Military Personnel Management Act, and claims that such vagueness makes the whole "system of elements" vague. As for the limits on delegated legislation, this article argues that "orders and commands" must maintain certain "formality," in accordance with the principle of "nulla poena sine lege," and thus, Article 47 violates such principle. This article further suggests removing Article 47 from the military criminal code, and if it were to be retained, it suggeests that "orders and commands" under the article must be specified. It also suggests combining Article 44 and 47 in a way that "failure to obey order" is punished only if grave results follow, in order to resolve the problem of vagueness in its application. Also, this article emphasizes that "commands of return," which distorts the purpose of Article 44, must be discontinued.