軍人의 法的 性格

• 영문명: The Legal Character of Military Personnel
• 발행기관: 한국국가법학회
• 저자명: 이광원(Lee Kwang-Weon)
• 간행물 정보: 『공법논총』제6호, 1~18쪽, 전체 18쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2010.05.30

영문 초록

The application of constitutionalism(“Rule of law”) is not excluded even from the area of army, and the gist of that application to the army is the ruling of military service. On this issue, there has been “Special power relation theory” or “Revisionism”. But this theory has critical defect. Because this theory suggests that the constitutionalism is not applied to the army and, in addition, basic human rights are categorically excluded from the military personnel. That is why “Special administrative legal relationship theory” emerged. But this has also much problems. According to “Special administrative legal relationship theory”, the constitutionalism is also applied to the military personnel, but the depth and length of that application is(and should be) different from that in the realm of general administrative legal territory. Nevertheless, there has been no satisfactory answer on why(and to the what extent) that different application is valid. So, this thesis is, above all, mainly focused on investigation about the ground of such different application. To this purpose, we will also research the right and obligation of military personnel. I from the present paper first made clear the ground of the special rule about the military personnel, and explained the right and the duty of the military personnel. The ground of the special rule about the military personnel is the legal character of the military personnel. The military personnel has the character of the citizen, the government employee, the national defense obligatory accomplishment person, the warfare accomplishment person, the belligerent. The military personnel who is a citizen has the basic human rights. But these rights are restricted because of national defense duty and warfare accomplishment duty. The military personnel has the right and duty of government employee. These most part are Occupational right and duty. The military personnel is supported with the form which is various. It is compensation about national defense obligatory accomplishment and warfare accomplishment. The military personnel who is a belligerent has the right which will be able to attack the enemy. The belligerent is protected in terms of the international law, when he becomes a prisoner of war. According to many kinds character of the military personnel, we will be able to classify the right and the duty of the military personnel. Also we will be able to understand those contents and limit.

목차

Ⅰ. 序論

Ⅱ. 軍人의 槪念

Ⅲ. 軍人의 多面的 性格

Ⅳ. 結論

키워드

military military affairs soldier military personnel legal status legal character