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군사법제도의 문제점과 개선방안The Problem and Its Reformation on the Military Legal System

Other Titles
The Problem and Its Reformation on the Military Legal System
Authors
정준섭
Issue Date
Feb-2010
Publisher
한국형사법학회
Keywords
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.
Citation
형사법연구, v.22, no.4, pp.69 - 99
Journal Title
형사법연구
Volume
22
Number
4
Start Page
69
End Page
99
URI
https://scholarworks.sookmyung.ac.kr/handle/2020.sw.sookmyung/7390
DOI
10.21795/kcla.2010.22.4.69
ISSN
1598-0979
Abstract
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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