위수령의 해석과 입법방향

Abstract

Although civil society raised ceaseless questions on garrison decree, there were very slight studies on garrison decree in the academic world of Jurisprudence. There were few efforts to analyze both the individual contents and overall meanings of norms and so propose their legislative directions. The garrison decree is still established as one of our country's military law system, and still exists as a procedurally effective norm. Some people argue that our country still needs the systematical device through which the military can maintain public peace and order according to the request of administrative offices without having recourse to the extreme means such as martial law. Like this, in spite of many abuses and criticisms in the past authoritarian governments, the garrison decree has existed effectively until the present, and has been established in fact as the norm regulating emergency policy situation. The ignorance and misunderstanding of garrison decree also continues without special improvement. On the basis of such question consciousness, the purpose of this study is to interpret and examine critically the individual contents of garrison decree and so present the directions of debate around garrison decree. The legislative purpose of garrison decree was not to mobilize military forces to domestic public peace and order, but to prepare originally the general regulation on guarding military units. The use of arms regulated by garrison decree is garrison duty soldiers' use of arms, which is the same as sentries' use of arms according to military standing orders. The contents such as military forces mobilization and military forces dispatch are all the regulations on administration assistance, which support supplementarily the order maintenance duty of general administrative offices. The national power abused such contents as the content that the military could carry out active order administration actions. This study revealed the original meaningful contents of garrison decree, and so considered the precedents abused unlike such meaningful contents, and then argued that legislative arrangement was required to prevent the possibility of exercising governmental authority on the basis of unconstitutional interpretation.