군인의 기본권제한과 사법심사 - 판례평석: 헌법재판소 2010.10.28.선고2008헌마638결정 -

On October 28th 2010, the Constitutional Court, in ruling constitutional appeal against military service regulations that prohibits carrying seditious books, ruled that such regulations do not violate constitution. When we review the restriction on the fundamental right of soldiers, we must initially valuate the purpose of relevant mission wether that mission's character are of in war time or not. If we judge that soldiers carry only a matter of life or death “war” even in time of peace and we need only one guide of restriction, all restrictions on the fundamental right of soldiers are always justified. This annotation is to examine that the ruling from the above point of view. Especially regarding the need of prohibition, I basically divided issues in two(in time of war and peace), and thereby set out my opinion in connection with either situation's nature. The regulation in this case is based on the conception that injection of idea forced by government in war time is aimed to maintain morale forces of soldiers and can be justified because of its function of the war deterrence. Reversely, such injection of idea in time of peace may instigate military culture that is cut off from society and therefore can negatively influence on the morale forces. Finally, I reach a conclusion that injection of idea forced by government in peace time is against the principle of proportionality.