군사법제도의 문제점과 개선방안The Problem and Its Reformation on the Military Legal System
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- The Problem and Its Reformation on the Military Legal System
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- 지휘권 보장; 장병의 인권보장; 군사법제도; 관할관; 심판관; 군배심제도; 관할관 확인조치; the guarantee of the commanding right; security of military personnel' s right; the military legal system; the convening authority; lay-officer; the military jury system; the convening authority confirming procedure.
- 형사법연구, v.22, no.4, pp.69 - 99
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- The ideal of the Military legal system to guarantee the commanding right and secured the military personnel's right should be pursued with the harmony. However, it is true that the commanding right has been esteemed more that the military personnel's right. Among the system to guarantee the command rights, the convening authority confirming procedure violates the Constitution and should be abolished because it infringes the principle of the division of power in the Constitution or the organization system of the Court. In addtion, lay-officer also violates the Constitution article 27 which provide the right to be tried by the judiciary according to the Constituion and the Code. In order to solve this problem, the military jury system should be introduced.
As a feasible plan dividing the military prosecutors function and the military courts function separately, it is suggested that the military courts should be separated from the current JAG officers' organization. And also it should be forbidden that the judical staff has the influence on the court martial.
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