‘군사재판을 받지 않을 권리'에 관한 소고

Article 29, Section 2 of Korean Constitution provides that “[c]itizens who are not on active military service or employees of the military forces shall not be tried by a court martial within the territory of the Republic of Korea, except in case of crimes as prescribed by Act involving important classified military information, sentinels, sentry posts, the supply of harmful food and beverages, prisoners of war and military articles and facilities and in the case of the proclamation of extraordinary martial law.” This Article has been praised in that it provides this constitutional right because there had been so many illegal and unreasonable military court-martial cases after the establishment of Korean Government, but it has also justified military trial of civilians for offenses that are usually within the jurisdiction of ordinary courts in other states. Even before the first provision in the Korean Constitution of 1962, the sphere of the military courts' jurisdiction was narrower, because only spying to supply military information and aiding the enemy were punished by the National Defense and Guard Act. The sphere became broader and broader as the Korean Constitution was revised in 1972, 1980 and 1987. There is no other country in which a military court tries civilian criminals for offenses against the military, such as the crimes relating to classified military information, sentinels, sentry posts, the supply of harmful food and beverages, prisoners of war and military articles and facilities. Research disclosed some countries in which military courts try civilians for crimes relating to the national defense or public order, such as the possession of prohibited bombs and ammunition in Uganda, the crime against the national security in Morocco or the crime relating to military facilities in France. The jurisdiction of the military court in Korea is the broadest one in the world. The Article provides for military trials during the proclamation of extraordinary martial law. A logical reason for this is that martial law is proclaimed when the ordinary judicial system is in disorder. But in Korean modern history martial law was proclaimed often without any disorder in governmental administration and the judiciary because the governors wanted military rule for their regime's sake, taking advantage of the ability to proclaim martial law. Considering this history, military trials for civilians should be restricted strictly to when the ordinary courts are in disorder, even during periods of extraordinary martial law. The Article should be repealed because of the following reasons. First, as a matter of general principle, military trials are for members and employees of the military, those who are in military discipline, not for the civilian population, who are subject to the laws and courts of the civil government. Second, in consideration of the possibility of abuse shown in Korean history, when the non-military judicial system is functioning ordinarily, civilians should be tried by the civilian courts even during periods of martial law. Third, when compared with the laws of other countries, this provision relating to military court jurisdiction is the broadest in the world.