군형법상 가혹행위죄 적용의 합리화 방안

Severity-act crime on the Military Criminal Act needs to be discussed in depth from perspectives of the principle of legality, the legality of criminal procedure and restorative justice state. First, severity-act crime is discussed whether or not it corresponds to the principle of legality in terms of elements of a crime and punishment, and the relation to the other similar elements of a crime and clear distinction of the foregoing is discussed in terms of elements of a crime. Especially, legislations that are actually applicable to the cases related to severity-act are scattered in different places, so a discriminative approach in interpreting elements of a crime is considered required due to the issue about what regulation needs to be applied to a concrete matter, difference from similar crime group on the criminal law and distinctiveness of the Military Criminal Act. For the aforementioned, this study aims to understand characteristics and reality of severity-act in the military and examine a standard for judgment on the requisite for establishment of a severity-act crime appeared in the precedents by comparing and reviewing similar crimes and relevant regulations, and will handle compatibility of abuse of authority and severity-act, distinction between abuse of authority and use of power, distinction between severity-act and act of violence, distinction between severity-act and cruel treatment and distinction between severity-act and act of making soldiers painful in priority based on the foregoing. Next, there is a necessity to distinct a severity-act subject to criminal sanctions from a severity-act subject to administrative sanctions, and to discuss about appropriate sanctions in the handling process after establishment of a severity-act. As an improvement plan for the above, this study will finish discussion by reviewing recommendation of disciplinary action in principle, the measure to materialize regulations on the act of making soldiers painful through introduction of the principle of the right to prior consideration of army prosecution, systematic distinction between reason for criminal punishment and ground for disciplinary punishment etc.