준(準) 국가비상사태에 대한 헌법적 대응의 해석적 한계와 극복요건

This study deals with the legal and practical limitations and problems of the current Constitution and Martial Law in terms of the requirements for the exercise of the national emergency power revealed through the declaration of martial law on December 3, 2024, and what measures are taken to overcome them. According to Article 77 of the current Constitution, ‘wartime, incident, or a state of national emergency equivalent thereto’ is stipulated as one of the requirements for the exercise of martial law. In terms of the relevant requirements, ‘wartime, incident’ presumes a traditional security disaster, such as the outbreak of war, but in the case of a ‘state of national emergency equivalent thereto’, the scope is limited by the term ‘quasi-national emergency’. Accordingly, detailed criteria will be required regarding what kind of situation a ‘quasi-national emergency’ is specifically. To this end, we will examine the situational requirements for the exercise of martial law over the past 77 years of history and focus on establishing requirements that specify the scope of constitutional interpretation characterized by openness. In Chapter 2, we analyzed the theoretical basis of martial law as a state of emergency, along with the indefiniteness and comprehensiveness of the wording of the regulation, “quasi-state of emergency,” and the possible violation of the principle of rule of law and the gap in institutional control. In Chapter 3, we examined the history of actual cases based on the requirements for initiating martial law, which have been maintained almost identically in the Constitution and the Martial Law, and confirmed the possibility of abuse of authority inherent in the indefinite wording of the requirements for martial law. In Chapter 4, we reviewed the new institutional devices of the Federal Republic of Germany’s “state of defense” and “joint committee” under the Basic Law. It was confirmed that Germany subdivides the “state of emergency” into “state of defense, disaster, and threat to the liberal democratic basic order,” and strictly controls the requirements for deploying military forces through the Federal Assembly’s prior approval system and multi-level decision-making, thereby securing the predictability and accountability of the emergency power. Finally, in Chapter 5, we attempted to present ‘Measures to Supplement and Develop the Conditions for Activating Martial Law’. To this end, we confirmed that there are step-by-step response situations in the ‘Integrated Defense Act’ and that a step-by-step approach to the conditions for activating martial law is possible by linking them. In addition, it is possible to reflect the step-by-step nature of the activation of martial law through the ‘Basic Act on Disaster and Safety Management’ and the National Crisis Guidelines. As a result of this study, we confirmed that the abstract requirements of ‘a state of national emergency equivalent to this (wartime/incident)’ can secure the criteria for securing controllability, predictability, accountability, and basic rights. With this, we aim to contribute to establishing a legislative foundation for the appropriateness and constitutionality of martial law requirements.