전시 계엄법제의 합리적 운용에 관한 고찰

Rationalizing the Application of Martial Law in War Time

&nbsp;&nbsp;The word “martial law” has been stained with some negative images in our Korean constitutional history. It&quot;s because the history had experienced repeated improper use of martial law by the autocratic or military governments. Along with the negative images, the past wrongful misunderstandings on martial law has still remained in today&quot;s Martial Act.<BR>&nbsp;&nbsp;The Act traces back to the Japanese martial law of 1882. The Korean 1948 Constitution adopted the martial law system. The Martial Act of 1949 made a model of the Japanese one of 1882. The Act bestowed a chief martial law administrator with the full power of taking charge of all civil administrative and judicial affairs at the same time of proclamation of martial law.<BR>&nbsp;&nbsp;But it is doubtful whether it is reasonable and proper to authorize him to take charge of all civil administrative and judicial affairs. That is not proper on the construction of constitution and is not practical in its actual applications. The 1987 Constitution provides that “special measures on the powers of the Cabinet and the Judiciary may be taken…in the case of proclamation of martial law.” The special measures mean some individual and specific measures in the need of situation. It cannot be interpreted as “taking charge of all civil administrative and judical affairs”. Moreover, it is functionally impossible to control the massive and professional civil affairs through the non-professional military personnel.<BR>&nbsp;&nbsp;Unfortunately, today&quot;s most constitutional textbooks explain the concept of martial law based on the above false premises. They are misunderstanding the martial law as “military government”. Introducing new proper understanding on the nature of martial law. this article considers the constitutional and reasonable applications of the Martial Act in several respects.