군 형법상 명령의 정당성에 관한 고찰

• 영문명: The Study of the Legality of a Superior's Order in the Military Penal Code
• 발행기관: 한국부패학회
• 저자명: 이만종(Lee Man jong)
• 간행물 정보: 『한국부패학회보』제12권 제2호, 45~60쪽, 전체 16쪽
• 주제분류: 법학 > 민법
• 파일형태: PDF
• 발행일자: 2007.06.30

영문 초록

The view denying absolute binding effect of a superior's order says that the law does not allow anyone to be illegal. We can articulate many theories to exempt the subordinate from criminal responsibility. Among them are justified act theory, indemnifiable emergency act theory, confliction of obligation theory, and expectability theory. Even though I reviewed on several theories, they can be categorized into two major areas of the theories. One is exclusion of illegality theory and the other is exclusion of responsibility theory. If you don't support the absolute binding force of a superior's order, no one can be excused for the reason of dropped illegality. But on the indemnifiable emergency act theory, if the obligation to observe the law is balanced to the obligation to obey an illegal order, you can be excused. this study on theories and cases about order and it's obedience concludes that a superior should not order a subordinate to do anything illegal and should encourage discussion and proposals in order not to indulge himself in the dogma of order and its obedience. We should keep communication channel wide open between the superiors and the subordinates.

목차

ABSTRACT

Ⅰ. 서론

Ⅱ.정당성에 관한 이론적 논의

Ⅲ 정당한 명령의 위법성 조각여부

Ⅳ. 위법명령수행에 의한 부조리 예방방안

Ⅴ. 결 론

참고문헌

키워드

정당성(legality) 상관(superior) 명령(order) 군형법(military penal code)