1948년의 비상계엄과 이에 영향을 미친 일제의 ｢계엄령｣에 관한 검토

There is little disagreement that a decisive historical factor shaping the martial law regime of the Republic of Korea was the Japanese colonial rule and the acute ideological confrontation driving warfare. The Korean Martial Law Act has generally been understood as having largely inherited the Japanese Martial Law Ordinance promulgated in 1882. However, a closer examination of the nature and practice of the Japanese ordinance — which was established prior to any framework of constitutionalism — clearly reveals that it was oriented less toward constitutional control over the emergency powers than toward the efficiency of imperial governance and colonial administration. The ordinance was enacted within a legal order that did not recognize a bill of rights, was anomalously incorporated into and operated within the framework of the Meiji Constitution, and was originally oriented, in all likelihood, toward imperial expansion rather than domestic contingencies. This orientation is further evidenced by the fact that when the necessity of so-called “political martial law” later emerged, certain provisions of the ordinance were applied in an anomalous manner under the rubric of “administrative martial law.” The establishment of the Tokyo Army Court-Martial following the February 26 Incident of 1936 — an attempted coup by the Imperial Way faction within the Japanese Army — further enabled direct military domination of politics, demonstrating the actual mode of practice of the Japanese martial law regime. In colonial Korea, the ordinance was implemented immediately by imperial decree and appears to have been introduced as a legal instrument capable of performing some of the functions later assumed by the Act of Preserving Public Order during ordinary times (1925). After liberation, however, the Japanese Martial Law Ordinance was not formally repealed and thus remained potentially applicable. Consequently, after the promulgation of the Constitution of the Republic of Korea, emergency martial law was declared in response to the Yeosu–Suncheon Incident and the Jeju April 3 Incident despite the absence of a statute concretizing the constitutional delegation concerning martial law. The problem lay in the fact that these declarations appeared, at least superficially, to rely directly on the Japanese ordinance itself. Interpretations asserting that the ordinance remained applicable pursuant to Article 100 of the 1948 Constitution differ little from attempts to rationalize extraordinary measures on the grounds of the state’s survival in a “provisional situation” where no Martial Law Act yet existed. The enactment of the Martial Law Act in 1949, which directly adopted the Japanese ordinance as its original model, can likewise be understood as an inevitable outcome of the post-liberation constitutional circumstances. A close examination of the emergency martial law of 1948, the legislative process leading to the 1949 Martial Law Act, and the nature of the Japanese Martial Law Ordinance that influenced both enables a more precise understanding of the problems that continue to persist within the Korean martial law regime. The framework and anomalous practice of the Japanese ordinance — never originally conceived with constitutionalism in mind — have continued to shape the structure of the Korean martial law regime from the declaration of emergency martial law in 1948 through to the present.