군 사법제도 개선의 핵심 쟁점에 대한 연구

Abstract

The armed force exists to defend its people and land when the state faces its extremely grave security crisis. To help the military accomplish its mission, the legislator enacted military criminal law of which primary goal is to enforce military-discipline and to maintain fighting strength. In this backdrop, the miltary legal system also should serve to help the military carry its sacred mission, defending people from the foreign invasion. On the other hand, every military man, a member of nation, has a right to a fair trial by a non-partial judges. The difficulty lies in balancing those two conflicting interests the military legal system pursues. The objectives of this research are to investigate the defects of the ‘Acts for the Improvement of Military Legal System’, of which primary purposes are abrogation of current “Court-Martial Act” and enactment of new 3 separated Acts, and to make a proposal about how we should tailor our military legal system to balance those conflicting tow interests. For this purpose, this study will examine the provisions of the Korean Constitution about military legal system, then it will deduce the real reasons and goals why the Korean Constitution allows Court-Martial as the only special court. On the basis of those goals deduced from the Korean Constitution this study will carefully examine issues arising during the enactment process from many scholars. It will also study whether ‘Acts for the Improvement of Military Legal System’ strikes balance between those two conflicting interests, and if not, then this study proposes what we should change to help military legal system accomplish its goals which our constitution intends to achieve with the only exceptional judiciary system.