구 군형법 제92조의5의 위헌성

In the Korean military criminal law, the Disgraceful Conduct crime is prescribed in following, Article 92-5 (Disgraceful Conduct) A person who commits sodomy or other disgraceful conduct shall be punished by imprisonment with prison labor for not more than two years. [This Article Wholly Amended by Act No. 9820, Nov. 2, 2009] The Disgraceful Conduct crime in the Korean military criminal law, as compared with the criminal law, is stern discipline. The sodomy or other disgraceful conduct is not punished in criminal law. The principle of nullum crimen sin lege, or nullum poena sin lege prohibits sanctions on the absence of penal law and implies that penal statues should be precisely construed. The principle of nullum crimen sin lege, or nullum poena sin lege comprise two fundamental principle, that are the rule of law and the rule of due process of law. The rule of law is ambiguous term that can mean different things in different contexts. According to the rule of law, No individual can be ordered by the government to suffer criminal punishment except in strict accordance with well-established and clearly defined laws and procedures. The rule of due process of law that individuals shall not be deprived of life, liberty, or property without notice and an opportunity to defend themselves predates written constitutions and was widely accepted in Korea. No freeman shall be seized, or imprisoned except by th due process of law. There are many views in the interpretation of Article 92-5 (Disgraceful Conduct) in Korean military criminal law. The Korean Constitution Court has adjudicated that the punishment of sodomy or other disgraceful conduct is not unconstitutionality. From the rule of law, The Article 92-5 (Disgraceful Conduct) is not contrary to the Constitution. For the sodomy or other disgraceful conduct could be construed to the people. And from the rule of due process of law, The imprisonment with prison labor for not more than two years is not excessive punishment. For in the case of imprisonment with prison labor for not more than three years in Korean criminal law, The court can adjudge the suspension of execution and in the case of imprisonment with prison labor for not more than one years, the suspension of sentence. In Korean military service act Article 3 (Mandatory Military Service) (1) ‘Every masculine gender of the Republic of Korea shall faithfully perform mandatory military service, as prescribed by the Constitution of the Republic of Korea and this Act. A feminine gender may perform only active service or reserve service through volunteering’ During the obligatory term of military service, The enlisted men obliged to live an army life in the restricted barracks. It may well be that the sodomy or other disgraceful conduct may happen in the barracks. Besides in the criminal act, “A person who resists or disobeys a legitimate order of his/her superior shall be punished.” If the sodomy or other disgraceful conduct was committed by the superior, it might be very difficult to present evidence. In conclusion, Article 92-5 (Disgraceful Conduct) “A person who commits sodomy or other disgraceful conduct shall be punished by imprisonment with prison labor for not more than two years.” is not unconstitutional Act.