제헌국회의 계엄령 헌법화와 계엄법안의 차별화

The bill of martial law in modern Korea was finally completed through three phases. First phase is the constitutionalization of martial law through making the article of president' proclamation newly in First Constitution. In this phase, the president' proclamation was mainly organized by introducing and accepting from some other countries' clauses of constitution. For instance, it was not made by the necessity of martial law itself which was for the response to the war or insurgency of the state, but made by the defining and giving of president's authority through the comparison of each country's constitution. Therefore, the necessity or legitimacy of martial law itself for the modern nation-state could not properly be discussed in this phase. Second phase is the enforcement of martial law through the proclamation and execution as seen in the case of Yeosun rebellion or Jeju 4･3 Struggle. Especially, the form, procedure, and structure, content of martial law in these two cases was generally similar to the Imperial Japanese' one. Even though the government followed the formal procedures that president proclaimed by the decision of cabinet council, the real contents and the scope was decided by the judgement of chief martial law administrator or local leader of army. The ultimate purpose of martial law in the case of Yeosun rebellion or Jeju 4･3 struggle was the maximum of the efficiency of the military operation. Therefore, the legal condition or limitation of the enforcement of the martial law was almost not argued. The third phase is the legalization of martial law which was submitted to the Constituent Assembly and discussed. The first type of its legalization was the draft of martial law which was submitted by the Ministry of Defence in December 1948. This bill was made at the time of increase of martial law's necessity on the government base just after Yeosun rebellion. However, this bill was a sort of the imitation of Imperial Japan's martial law in the side of law system, structure, and character. Second draft of martial law was the bill of Ji Dae-hyung or Foreign Defense Committee's bill which was submitted to Foreign Defense Committee by the name of national assemblyman Ji Dae-hyung and other 14 people in June 1949. This bill was nearly the same as the Defence Ministry's draft in December 1948 in the side of law system or content. The third draft was the bill of Legislation and Judiciary Committee, that is the alternative bill which was submitted by Legislation and Judiciary Committee to the National Assembly in October 1949. This bill was based on the Foreign Defense Committee's bill which was submitted to the Legislation and Judiciary Committee on July 18, 1949. At first, Legislation and Judiciary Committee discussed this draft seriously, but they made a new draft which referred to the collected Defence Ministry's and Legislation Agency's opinions. This new bill, the alternative bill, has an important meaning that it cut off previous martial law system under the influence of Imperial Japan's martial law, and newly retained its independent character. As seen from above, the bill of Legislation and Judiciary Committee shows its legal evolution from the imitation of Imperial Japan's martial law to the formation of Korean own legal system. In Korean legal culture, Imperial Japan's martial law was much more familiar law than any other countries' one, because Korean had already experienced imperial Japan's law system during colonial period. Therefore, it is natural that first draft of martial law by the Ministry of Defence was made in accordance with the model of imperial japan's martial law. However, Constituent Assembly gradually differentiated its own martial law's system, structure and contents from imperial Japan's one. The alternative bill by Legislation and Judiciary Committee was the result of this work. The process of legalization/institutionalization of martial law in Constituent Assembly has an important meaning that it shows the introduction process for the Korean martial law. Even though it had some limitation to legalize the bill of martial law, it can be understood as the differentiation process for its own independent law. This means the development process from the imitation to the differentiation of Korean martial law.