軍인사법상 기소휴직제도에 대한 비판적 고찰

Abstract

A military man performs sacred duty which is taking care of national defense, protect citizens and their property. Because of their special circumstance, military man's fundamental rights has been restricted under a range somehow. However, military man have right to possess guaranteed fundamental rights under constitution, since they are also a national citizen. Therefore, restriction of fundamental right for a military man should be based on a law that has been established under the national assembly, not a superior command nor inside of military policy. Yet, the current military personal law 48-2(temporary retirement) says if a officer has been prosecuted in a criminal case, the following commander has right to punish as temporary retirement, which makes it difficult to definite in what case that needs to be punished as a temporary retirement. In other words, the commander has right to punish, if the officer has been prosecuted in criminal case, no matter a criminal fact was made before or after the recruitment, whether it is related or unrelated to their job and whether a officer has been arrested or not. If one's temporary retirement has been made, the wages will cut down into half, and one's job position will be removed which will make a economical and personnel disadvantage. Especially, for officers who were serving as a mandatory duty cannot discharge if they have been punished as temporary retirement until the court judgement, which will make it difficult to have normal return to society. This temporary retirement law caused a lot of issues to the law theory, including actual reality. In other words, it is a contradiction of presumption of innocence, since the accused has been set as a guilt and already punished by commander, even the trial hasn't been made. Also considering of fundamental rights of an accused person, it is over the limit of the delegated legislation, since the law doesn't say a clear statement or a criterion in what case an accused should be punished as temporary retirement, and grant a excessive discretion to commander. Furthermore, compare to achieve public interest by disposing officers as temporary retirement, it seems that there is an excess of violation of one's right. In other words, it is also violating the principle of proportion. As well as violating one's right, if the officer is trying to appeal for higher court, the temporary retirement will be continued since the officer is still being accused, results the officer to withdraw for the higher appeal. This is actually limiting the right of access to courts for officers who were accused. Moreover, the disposal of temporary retirement is based upon commander's discretion. In other words, the possibility of a officer to be disposed as temporary retirement or not can be based on a relationship between the commander and the accused, which is violating legal balance and legal stabilization. After all, the temporary retirement on account of indictment under the military personal law caused a lots of controversial point in law theory and both in actuality, which seems to be unavoidable to be revised. Therefore, to improve current law on temporary retirement for officer who is accused needs to be changed as the following ; 'The appointment authority holder(commander) have to dispose as temporary retirement if the officer, W/O, and NCO have been arrested.' By revising the current law as stated above, the problems about current law on temporary retirement for officers who were accused can be solved.