비상계엄하의 군사법원 재판권에 관한 소고

The Korean Martial Law Act has problematic areas, including jurisdiction of military courts under emergency martial law. Looking at this from a comparative law perspective, regarding the jurisdiction of military courts under emergency martial law, France has similar provisions to Korea but has historically reduced the jurisdiction of military courts. In the cases of Germany, the United States, and Japan, even in emergency situations such as the declaration of emergency martial law, civilians do not undergo trials in military courts. Military courts‧prosecution inherently have weaknesses in terms of specialization and human rights protection compared to general courts‧prosecution. Following global trends, Korea also needs to reduce the jurisdiction of military courts. First, let us examine Article 7(1) of the current Korean Martial Law Act, which stipulates that the commander of martial law is responsible for all judicial matters in the martial law zone. Given that the jurisdiction of military courts during a state of emergency martial law is already regulated by Article 10 and other provisions of the Martial Law Act, that there are issues with the jurisdiction of military courts, and that the trend towards reducing military court jurisdiction is desirable, it would be advisable to amend the phrase “all judicial matters” in Article 7(1) to “judicial matters excluding trial activities.” Next, let us examine the retroactive application of the jurisdiction of military courts. The current provision of Article 27(2) of the Korean Constitution is an exception clause that limits citizens’ right to trial, and it must be interpreted strictly. Judicial economy is also important. Therefore, when interpreting Article 10 of the current Martial Law Act, it should be understood that “military courts have jurisdiction only over crimes committed by ordinary citizens during the period of martial law.” To eliminate interpretative disputes, it is necessary to amend the text (the proposed amendments are presented in the main body of this paper). Furthermore, there is a debate that Article 10 of the current Martial Law Act is excessively broad in its scope. In this regard, it would be appropriate to remove offenses such as murder (Article 9) and robbery (Article 10), which are relatively common and not closely related to maintaining the state’s authority in emergency situations.