군사법원 폐지를 위한 사례연구

Abstract

Dreyfus Affair, the trial that rocked the very foundation of French society in the nineteenth century, raises serious questions about the essence of human rights, justice and the truth. Held in a military court, this trial was rigged with difficulties from the beginning since it was nearly impossible to summon and interrogate the Minister of National Defense and military generals; the presiding judge and chief judge of the court were generals themselves. Furthermore, the counsel for Dreyfus, an expert in civilian trials, did not know customary practices and rules of procedure in military court. In the end, Dreyfus was sentenced to exile for life. Dreyfus Affair of a century ago provides the Korean society a strong sense of déjà vu with regards to the current military justice system. Since the mid-2000s, the Korean government, National Assembly and civil society have made great efforts to reform the military justice system. Nonetheless, no fundamental change besides minor procedural modifications has been achieved. Even though the authority of the military commander to confirm jurisdiction has been weakened, and the availability of military courts has been limited to military corps from previous inclusion of military divisions, the so-called ‘military judicial system by the commander and for the commander’ remains in its essence. Even today, military commanders do not want to give up their authority over personnel affairs in appointing judges, prosecutors, and adjudicators, while also attenuating power over final rulings. These commanders regard the military justice system as a crucial part of their authority. Even military judicial officers, including the judge and the prosecutor, do not mention judicial independence; they also perceive the military justice system as one part of the military institution. Military commanders’ sole control in the military judiciary has turned an integration of military commanders and military judicial officers. Democratic control of military justice system by citizens and civil apparatus is yet to be considered. Without the abolition of military courts, we cannot solve this problem. On the basis of the above diagnosis, we will prove our insistence on the necessity of abolition of the military court system through a comparative analysis of domestic cases in military courts and foreign military trials in civilian court. The examples include practice training of military captives, sexual violence in the army, freedom of expression of the soldier, and assault on senior-ranked officers. Moreover, we introduce enduring characteristics of German military trials in civilian courts. We suggest using the German ‘emergency model’ in effect during times of threats to national security, which relegate military crimes to civilian courts presided by regular judges, while allowing military officers to participate as associate judges.