군사법원의 신분재판권에 대한 비판적 고찰 - 개정 군사법원법 제2조 제2항을 중심으로 - = Critical Examination of the Jurisdiction over Status Trials in the Military Court -Focusing on Article 2, Paragraph 2 of the Amended Military Court Act-

다국어 초록 (Multilingual Abstract)

Article 110, Paragraph 1 of the Constitution states that a military court can be established as a special court to handle military trials. Currently, the military court operates based on this provision, with detailed regulations specified in the “Military Court Act.” However, criticism has been raised against the military court system for infringing upon the right to be tried by civilian judges, as guaranteed by the Constitution. There have also been concerns over the systematic concealment of incidents such as sexual violence and deaths within the military, as well as unfair and opaque handling of cases by the military judicial institutions. As a result, the “Partial Amendment Act of the Military Court Act (Law No. 18465)” was promulgated on September 24, 2021, and implemented on July 1, 2022.
One notable aspect of the amended Military Court Act is the provision concerning jurisdiction over status trials, which was previously not addressed in discussions on military judicial system reform. This provision ensures that regardless of the applicable law, cases involving sexual crimes, crimes causing the death of military personnel, and crimes committed by military personnel or quasi-military personnel before acquiring their status will be transferred to general courts instead of being exclusively handled by the military court. This division of jurisdiction based on specific constitutive elements or results is a unique feature not commonly found in other legal systems.
This article examines the legal implications of the amended Military Court Act, particularly regarding the reduction of military court jurisdiction over status trials and other changes such as the abolition of jurisdiction officers and judges. It discusses the underlying rationale behind these amendments, questioning whether the reduction of military court jurisdiction and even the complete abolition of the peacetime military court system are valid, necessary, or unavoidable.