군형법상 명령위반죄의 문제점과 개선방안 (The Problem and Improvement of Violation of an Order in Military Criminal Act)

서지정보

· 발행기관 : 한국형사법학회
· 수록지 정보 : 형사법연구 / 23권 / 3호 / 285 ~ 310페이지
· 저자명 : 박찬걸

초록

Article 47, Military Criminal Act of Korea provides that a person violates or fails to obey any justifiable general order or regulation shall be punished by imprisonment or imprisonment without prison labor for not more than two years(Amended by Act No. 9820, Nov. 2, 2009). Although this provision has been right and just, both the interpretation and the application must be careful not to make an arbitrary decision and refrain from making a board interpretation. In this respect, this clause is too vague. Especially, it is not clear concept, content and legislator of 'order or regulation'. Nevertheless, The Constitutional Court of Korea and The Supreme Court of Korea has handed down its decision with constitutional.
However, this trend requires special attention, the Constitutional Court of Korea ruled in 1995 and 2011 that Violation of an Order was indeed unconstitutional, with four out of its nine justices speaking in one voice for the stated 'second violation of an order judgment'. Article 47 have a matter of great problem in relation to the principal of 'nulla poena sine lege'. Therefore, an immediate revision of this provision is needed. In conclusion, Article 47 should be abolished. The contents of 'order or regulation' which has ruled under Violation of an Order should be dealt to add a clause or disobedience.

영어초록

Article 47, Military Criminal Act of Korea provides that a person violates or fails to obey any justifiable general order or regulation shall be punished by imprisonment or imprisonment without prison labor for not more than two years(Amended by Act No. 9820, Nov. 2, 2009). Although this provision has been right and just, both the interpretation and the application must be careful not to make an arbitrary decision and refrain from making a board interpretation. In this respect, this clause is too vague. Especially, it is not clear concept, content and legislator of 'order or regulation'. Nevertheless, The Constitutional Court of Korea and The Supreme Court of Korea has handed down its decision with constitutional.
However, this trend requires special attention, the Constitutional Court of Korea ruled in 1995 and 2011 that Violation of an Order was indeed unconstitutional, with four out of its nine justices speaking in one voice for the stated 'second violation of an order judgment'. Article 47 have a matter of great problem in relation to the principal of 'nulla poena sine lege'. Therefore, an immediate revision of this provision is needed. In conclusion, Article 47 should be abolished. The contents of 'order or regulation' which has ruled under Violation of an Order should be dealt to add a clause or disobedience.

참고자료

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