군형사사법제도의 발전방안 고찰

Abstract

Including Uniform Code of Military Justice (UCMJ) and military court law, the most fundamental purpose of military jurisprudence is to secure strong combat strength by accomplishing general law idea of criminal law and Criminal Suit Act basically in army and protecting the maintenance of military discipline and the authority of command in military structure. Due to those backgrounds, Uniform Code of Military Justice and Military Court Law have strict and punitive characters, which guarantee very strong mastery and also have special systems such as jurisdiction system, judge system, and military prosecutor system. However, such special systems that only exist in military court law are recently challenged and brought attentions by both inside and outside of army. In demands of the times, constitutional administration of open and aboveboard military jurisprudence base on more realistic and rational legal profession clause is required. If there is to be fixed, a revisional be made with finality and purposiveness. Hereupon, with a close consideration to the unprepared and controversial issues of the current Uniform Code of Military Justice (UCMJ) and military court law, this research suggests the introduction of restorative justice in military jurisprudence as a good revision which can not only satisfy the distinctiveness of the military jurisprudence and but also make up for the weak points. Restorative justice is already positioning itself as one of the successful method to the criminal justice system in many countries and the longer it has been applied to the system, the more it has had great impact on the system. Especially, also in Korea, police force, public prosecutor, and even courts had already applied the restorative justice to their system and had achieved the desired, yet realistic results. Furthermore, because young soldiers in the public service at front line of our military fall into those young adults' age group, it also has to be observed that restorative justice is preferentially applied to young adults who are more likely to be contingent and impulsive. Specially, it helps to settle the professional conflict between the commander, who wants to restore and secure his men to military force, and the military law operating official, who has to value the fundamental principles of law without hurting each other’s self-esteem. In addition, many young soldiers can be saved from having a criminal record for a minor error. Thus, introduction of restorative justice to military jurisprudence is as effective as catching two, or even more pigeons with one bean.