상관의 위법한 명령에 불복할 수명자의 권리에 대한 헌법적 고찰

The military is an institution constitutionally empowered to employ armed force within the bounds of the national legal order. It operates under a distinct legal system in which acts that hinder military command or the assurance of victory in combat—in both wartime and peacetime—are treated as criminal offenses subject to severe punishment. In order to fulfill its core objective of national defense, the military demands strict discipline and a rigorous hierarchy of command and obedience. This system of command and obedience ensures the effectiveness exercise of military force for national defense, while simultaneously functioning as a safeguard against misuse or abuse of that force. In this context, the duty of obedience imposed on military personnel serves both to restrict and to actualize their fundamental rights, functioning as a means to reconcile individual rights with the imperatives of collective security. The legal system of South Korea codifies the duty of obedience for military personnel through statutory provisions notably ‘the offense of insubordination’. This offense penalizes subordinates who disobey a lawful order issued by a superior officer. The judiciary has interpreted the term “lawful order” (jeongdanghan myeongryeong) as one that is “legally valid” in nature. A central legal and constitutional issue arising in this context concerns whether a subordinate is obligated to obey an unlawful order and whether refusal to comply may be exercised as an expression of the subordinate’s fundamental rights. This raises questions regarding the proportionality between the basic rights of military personnel and the institutional requirement of obedience to military command. In cases where a superior’s order contains elements that clearly violate the fundamental principles of a liberal democratic order, such that its unlawfulness is evident even to the subordinate or to an ordinary observer, the subordinate is not bound by the unlawful order and may lawfully refuse to comply. This right to disobedience can be grounded in the constitutional guarantees of the freedom of general action under Article 10 and the freedom of conscience under Article 19 of the Constitution. However, if the unlawfulness of the order is not apparent or clearly recognizable, the subordinate cannot assert a right to disobey. In such instances, any restriction on the subordinate’s fundamental rights would be regarded as a constitutionally legitimate limitation necessary for the realization of the military’s command and obedience structure.