불온서적 지정의 위헌성

Abstract

In 2008, Korea Ministry of Defence(KMoD) banned various books on the grounds that they are politically dangerous or disturbing. KMoD declared that this measure was based upon Article 16, Section 2 of the Military Service Regulations (Presidential decree No. 20282). According to KMoD’s regulation, every soldier is banned from bringing, owning, reading, and distributing those books in the military barracks. But several army lawyers who took this regulation as a violation of fundamental rights made a legal appeal to the Constitutional Court of Korea. Thereafter, KMoD took extreme disciplinary measures against those lawyers precisely because they disregarded the chain of command mentioned in Article 24 of the Military Service Regulations. This essay intends to address the unconstitutionality of book ban and disciplinary measures taken by KMod. First, the Military Personnel Act which is the superior law to the Military Service Regulations doesn’t delegate power to ban books to the Regulations. Secondly, the Military Personnel Act should be declared as unconstitutional if it would delegate the wide range of discretions to set the ban on books to the Military Service Regulations. Thirdly, the book ban by the military authorities is unconstitutional, because it violates the essence of the right to know, to read, to pursue happiness, to information; and the right of conscience and political opinion, even if the authority to ban books is delegated to KMoD appropriately in terms of legal formalities or process. Fourthly, KMoD ran counter to the constitutional duty of political neutrality of the military, because KMoD set a ban only on the books that are critical of government policy. In addition, there are a lot of doubts about constitutionality of the Military Service Regulations. Specifically, KMod claims to check or block the soldiers’ right to appeal to state organs or commission out of KMoD on the basis of Article 24, Section 1 of the Military Service Regulations. But in terms of norm hierarchy, it is unthinkable to claim that presidential decree should or could block constitutional right to a fair trial. In every respect, the Military Service Regulations is graded as a residual of an anachronism of the so-called ‘special power relation’ theory. The Regulations should be superceded by the “Soldier Status Act”, which strengthens democratic control over the military and embodies the basic principles of international human rights and humanitarian law.