계엄에 관한 연구

Abstract

Korea firstly stipulated martial law in Article 64 of the 1948 Constitution, and accordingly the martial law was enacted on November 24, 1949, No. 69. However, although this martial law is the basis of the martial law of Korea today, criticism has been continuously raised that the content and system of the law does not conform to the present era. In addition, martial law was used as a means to deprive citizen’s basic right or maintain power of military dictatorships in the past even though it had to function as a safety device to overcome the national crisis. Therefore, the public's negative perception of the martial law system was high because of those unfortunate historical experiences. Britain and the United States are the representative countries of British and American family law countries that have martial law system as a national emergency. France and Germany are the representative countries of the continental family law countries that have martial law system as a national emergency. These countries developed martial law systems according to their situation. Considering the martial law systems of these countries is not only meaningful from a comparative law point of view, it is also necessary to understand Korea's martial law system. In the UK, national emergency powers are different from continental emergency powers because their requirements and content are determined by the principle of the Sovereignty of Parliament and the rule of law, the two pillars of the British Constitutional history. The amendment direction of the Korean Martial Law should ensure that special measures on warrants, freedom of expression, and judicial functions under emergency martial law are controlled in a way that does not infringe essential contents of the basic right. In addition, in the future, the amendment direction of the Korean martial law is to prepare necessary measures for the prevention and sanctions of illegal activities by the authorities under martial law, minimization of damage to the citizens, and relief of rights. Restrictions on freedom of residence and transfer that are not provided in Article 77 (3) of the Constitution are stipulated in Article 9 of the Martial Law, although Article 77 (3) of the Constitution is limited and the martial system is an urgent action because it is a serious exception to the guarantee of the basic rights of the government, it is unconstitutional to strictly limit the basic rights that are not provided in the Constitution such as freedom of residence and transfer. Accordingly, Article 9 of the Martial Law must be revised. To this end, by dint of the review of the unconstitutionality of martial law procedures and effects, it is necessary to revise related laws and regulations in order to have systematic consistency.