대법원 및 헌법재판소의 군형법 제92조의6에 대한 판결의 논증에 대한 비판적 논의: 로버트 조지와 존 피니스의 법철학의 관점에서

Article 92-6 of the Military Criminal Act is a provision that punishes a service-member who commits anal intercourse or other indecent acts with imprisonment for up to two years. In 2022 en banc ruling, the Supreme Court adopted a narrowed interpretation, stating that the provision does not apply to acts performed by male, same-sex service-members in a private area based on voluntary consent, thereby discarding its previous ruling that male, same-sex sexual acts 'objectively cause feelings of disgust to the general public and are contrary to sound sexual morality.' The Supreme Court's abandonment of a moral judgment on male, same-sex sexual activity is considered to have adopted the position of John Rawls' liberal anti-perfectionism. This is criticized by Robert George, a contemporary natural law theorist, as an avoidance of argumentation by public reason and the resulting acceptance of liberalism, disregard for the specificity of the military community, and de-contextualization of the right to sexual self-determination. Natural law theorist John Finnis is expected to support the Supreme Court's decriminalization of acts in the private sphere, but would criticize the court's reasoning for exceeding the scope of legal interpretation and its exercise of a legislative function. Conversely, in 2023, the Constitutional Court, based on the premise of the Supreme Court's en banc ruling, rendered a decision affirming the constitutionality of the provision, stating that it punishes 'acts that cause feelings of disgust and shame in the counter-party.' The Constitutional Court's development of its logic centering on the feelings of disgust and shame of the victim, rather than assessing objective notions of sexual morality, is a very regrettable aspect from the perspective of natural law argumentation. However, the Constitutional Court's affirmation of the constitutionality of Article 92-6 of the Military Criminal Act can be assessed as being similar to George's position. Meanwhile, Finnis would criticize the claim of infringement on the right to sexual self-determination, which was raised in the Constitutional Court's dissenting opinion regarding the crime of anal intercourse or other indecent acts, arguing that natural law does not recognize the use of the right to sexual self-determination outside the context of marriage. From the perspective of natural law theorists, all religious, natural law, and secular perspectives should be able to offer arguments for discussion in the public forum regarding the constitutionality and scope of application of Article 92-6 of the Military Criminal Act, which regulates sexual acts within the military as a special community. While it is regrettable that the majority opinion of the Constitutional Court did not clearly present this, it is broadly aligned with this stance. However, the majority opinion of the Supreme Court, by discarding moral argumentation from the stance of liberal anti-perfectionism, may cause problems from the perspective of the good and morality of the military community.