군형법에서 명령위반행위에 대한 구성요건의 개정방안

• 영문명: Reform of elements of crime on disobedience to order in military criminal law
• 발행기관: 한국형사정책학회
• 저자명: 정승환(Jung, Seung Hwan) 김현주(Kim, Hyun Joo)
• 간행물 정보: 『형사정책』刑事政策 第29卷 第3號, 185~215쪽, 전체 31쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2017.12.31

영문 초록

Members of the Armed Forces are citizens in uniform, and tens and thousands of such persons are subject to military criminal law. Thus, it goes without saying that military criminal law must strictly follow the basic principles of criminal law that apply to non-military citizens, such as the rule of law and the principle of nulla poena sine lege. However, the current military criminal law is problematic in that many of its provisions may be void for vagueness, if the principle of nulla poena sine lege were to be strictly enforced. The special position that military criminal law occupies in our current justice system, which makes it less visible to both the academia and the general populace, probably accounts for the lack of efforts in resolving such problems. This article first analyzes problems in applying Article 47 of the military criminal code ( failure to obey order ) with focus on the elements of the crime. In reality, Article 47 failure to obey order and Article 44 insubordinate conduct do seldom serve as grounds for punishment, considering the number of complaints raised. They rather serve as grounds for punishing deserters (in case fo Article 47) and conscientious objectors (in case of Article 44). There are also criticisms about these Articles violating limits on delegated legislation, proportionality, and due process of the law. This article points out the vagueness in the relation between the elements of the current military criminal code and those in the disciplinary rules provided in Military Personnel Management Act, and claims that such vagueness makes the whole system of elements vague. As for the limits on delegated legislation, this article argues that orders and commands must maintain certain formality, in accordance with the principle of nulla poena sine lege, and thus, Article 47 violates such principle. This article further suggests removing Article 47 from the military criminal code, and if it were to be retained, it suggeests that orders and commands under the article must be specified. It also suggests combining Article 44 and 47 in a way that failure to obey order is punished only if grave results follow, in order to resolve the problem of vagueness in its application. Also, this article emphasizes that commands of return, which distorts the purpose of Article 44, must be discontinued.

목차

Ⅰ. 문제 상황

Ⅱ. 명령위반죄와 관련 규정의 현실

Ⅲ. 명령위반죄와 항명죄의 규범적 문제점

Ⅳ. 명령위반행위에 대한 구성요건의 개정 방향

Ⅴ. 결론

키워드

군사법 군형법 명령위반죄 항명죄 죄형법정주의 Military Justice Military Criminal Law Disobedience to Standing Order Disobeying superior commissioned officer Due process of law