개정 군인사법 제54조의2 제2항 해석론: 실무상 쟁점을 중심으로

The Art. 54-2 (Classification of Persons in Military Service Killed in Action), para. 2 was newly inserted on Jan. 4, 2022 in the Military Personnel Management Act(hereinafter as “MPMA”) and the Art. 60-23 of the (Presidential) Enforcement Decree for this Act on Jun. 30, 2022. This article deals with the interpretation of these provisions. The Art. 54-2, Para. 2 provides that “Where a military personnel dies during his or her compulsory service period, he or she shall be classified as a public official who died in the line of duty[…]. Provided that where a person falls under any ground prescribed by Presidential Decree, such as death by intent or gross negligence or death caused by an unlawful act, the person may be classified as a person who died for ordinary reasons.” Although these provisions are still based on a fault-based liability system, this revision can be understood that, when it comes to the deaths of soldiers in the compulsory service period, a social consensus has been reached that the responsibility of the state should be guaranteed through shifting the burden of proof on the cause of death to the state. From this perspective of state responsibility, I would like to show what are better interpretations of the current controversial provisions, considering the newly developed precedents and practical examples of state organizations. My intention is to present uniform regulations about the death of soldiers, among MPMA, Military Accident Compensation Act, Act On Support For Persons Eligible For Veteran’s Compensation.