구 군형법 제92조에 대한 헌법적 평가 -헌법재판소 2011. 3. 31. 선고, 2008헌가21 결정의 평석을 중심으로-

A protection of legislation’s purpose of‘Protection of armed forces family life and establishment of armed forces law and order’on the Article 92 of the former military criminal law is fair. And, the method of discharge treatment or disciplinary action and so on cannot effective regulate sexual molestation in the armed forces. Moreover, this same rule is prescribes suspended sentence. Therefore, this same rule is not violated a principle of balancing test. But, this same rule is prescribed for the same penalty without regard to compulsion-related degree for a sexual molestation among soldiers. And, this same rule is prescribed with the subject and the object of a criminal act ambiguously. Moreover, we don't know an applied place of this same rule. Therefore, this same rule is violated a void for vagueness doctrine. Moreover, this same rule is violated a rights to equality. Because this same rule punishes a detective only for a sexual molestation among man soldiers by ‘sex of the cock’ which is an illustrative legislation rule in this same rule. And, because this same rule prescribes levies for the same penalty without levying for a penalty by degree of a sexual molestation among soldiers. On the other hand, the article 5 of 92 in military criminal law revised on November 02, 2009 has still problems violated a void for vagueness doctrine and right to equality like article 92 of the former military criminal law and this rule has still problems violated a principle of balancing test. Because this rule levies for a penalty equal to or less than two year, and there is not suspended sentence. Therefore, the article 5 of 92 in military criminal law must delete ‘sex of a cock’ in future. And, this same rule must prescribe application object definitely. Moreover, it is desirable to revise this same rule for a penalty equal to or less than one year so that suspended sentence is enabled.