테러 대응을 위한 군 병력 출동의 헌법적 문제- 군․경 분리에 대한 헌법적 기준에 대한 소고 -

Making a border between the police and the military and the separation internal security from external security are intended to subordinate the measures for internal security to constitution and rule of law. Separating the police from the military is a democracy’ bulwark which took in to account of strong military’s power that can disturb constitutional order. Most democracies restrict the military’s activities in the civilian sectors and the less contact between the two organization, they deem, the better democracy. Article 77 of Constitution articulates the strict conditions which have to be satisfied to permit the military’s calling out to meet the emergency needs and to maintain peace and order. Article 77 of Constitution acknowledges that there could be an unavoidable military’s role in domestic situation to protect national survival. But it also limit the military’s calling out to true state of emergency. Furthermore article 77 requires the president to give notice to parliament which later can request cancel of martial law and can require moving out of the military. At present, 『United Defense Act』 and 『Anti-Terror Act for Protecting Nation and Public Security』 is legal basis for military’s calling out to civilian sector. But these acts seem not to satisfy the constitutional requirements. To call out troops and use its physical power, we have to share practical, constitutional discussion, and circumstances may require us to consider revising constitution. Continuing to rely on ‘necessity’, ‘emergency’ and ‘reality’, when dealing with a very serious constitution issues such as calling out troops to civilian sector, could not dodge a blow to constitution’s regulatory power. Moreover, it would deliver a blow to democracy system in the long term and crisis response capability intrinsically.