대통령의 군통수 ‘의무’와 국군의 정치적 중립성— 2024헌나8 결정의 평가와 비판을 중심으로 —

Korea Constitutional Court’s impeachment decision against former President Yoon Suk Yeol, who was removed from office for declaring an illegal state of emergency on December 3, 2024, represents a judgment of profound significance within the constitutional system established in 1987. It was the first declaration of martial law in forty-four years and amounted to a direct assault on the 1987 constitutional order. This is because the president, by invoking emergency powers, mobilized the military the strongest instrument of force under his command to execute what was effectively a presidential self-coup. The people had believed that the era in which the military could once again be exploited as a tool to subvert the Constitution and destroy democratic governance for the unlawful ambitions of a single ruler or regime had long since passed. It was Yoon Suk Yeol’s declaration of Martial law that, in an instant, plunged nearly forty years of democratic constitutional development under the 1987 constitutional order into crisis. The Constitutional Court’s impeachment ruling, therefore, serves as a crucial foundation for examining the limits of the 1987 constitutional order and for exploring what must be reformed and improved in order to build a more complete democratic constitutional system. Above all, since the military which must be the people’s army- was again mobilized as an instrument to usurp sovereignty, it is essential to consider how and why it should be restored to its proper character as a national military under democratic control. In this regard, the Constitutional Court’s decision can function as a kind of “compass.” In particular, the Court’s acknowledgment that President Yoon, in deploying troops to the National Assembly and proclaiming unconstitutional and unlawful decrees on December 3, violated both the duty of military command under Article 74 of the Constitution and the principle of political neutrality of the armed forces under Article 5(2), deserves close attention. The Court’s explicit recognition of “the political neutrality of the military” as one of the constitutional limits on the president’s command authority marks a noteworthy and progressive development. Especially striking is that the Court defined what had long been regarded as the president’s “right” to command the armed forces as, in fact, a duty subject to constitutional constraints. However, the decision did not elaborate in detail on why it characterized the presidential command as a “duty” rather than a “power.” The term “duty of command” appeared only twice in the decision, without further theoretical explanation, which is very regrettable. Accordingly, this paper reviews the impeachment decision (2024Hun-na8) concerning the national criminal Yoon Suk -Yeol arguably the most important ruling since the founding of the Constitutional Court and the advent of the 1987 system and evaluates the concepts of the president’s duty of military command and the political neutrality of the armed forces.