'지휘관 사법'의 폐해와 그 폐지론 - 관할관, 심판관 제도를 중심으로-

Under the current military justice system, the commanders supervise the military prosecutor's offices and the general military courts as a convening authority. Such lack of independence of the military justice system has been an obstacle to fair prosecution and trial. Reform of the military justice system is one of the key elements of the democratization and social development in Korea. Logics and arguments for the separation of military system from constitution-based democracy (for the reason of its uniqueness and efficiency in command control) shall be no longer esteemed valid or justifiable. The author believes that adjudication and justice system controlled by unit commanders is the most problematic in the entire military justice system of Korea and that unit commander's exertion of influence over the system should be done away with. One may not find any better examples to justify the abolition of current commander-influenced military justice system than the cases of line-officer judge and convening authority system of the Korean armed forces. In order to make the justice system democratic, we must think hard on what values the constitution of Korea pursue and what type of society as a whole is envisioned thereunder. In line therewith, the author wishes to shed the lights on the commander-controlled justice system, including the line-officer judge and convening authority system, from theoretical and practical perspectives. The military commanders are the only executives who manage to retain the judiciary power, sacrificing the independence of the judiciary necessary to warrant fairness. If the human history teaches us anything, one of the many would be that there has been no person having executive power completely immune from personal bias, bribery, etc. while protecting the rights of subordinates and the general public to the fullest extent. Development of democratic society in Korea can be completed by democratization of the Korean military and to such an end, the author emphasizes the utmost importance of earning of the trust from the general public and enhancing the pride and the expertise of the military men and women through reform of the miliary justice system.