Evaluation and Improvement of Military Judicial System Reform

Citizens have the right to request the state to protect their safety, freedom, and property. This right inherently entails the duty of citizens to defend the national community. Accordingly, the Constitution imposes the duty of national defense on all citizens and, at the same time, organizes the national military forces for the purpose of national security, explicitly defining the missions and duties of the military in the general provisions of the Constitution. In consideration of the political situation on the Korean Peninsula and the unique characteristics of the military, Korean society has permitted exceptions in the judicial system to reflect the peculiarities of the military judicial system. However, since the 2000s, human rights violations in the military —such as deaths during training, abusive conduct, suspicious deaths, sexual violence, and cases of distortion, manipulation, minimization, and concealment— have emerged as social issues. This led to significant reforms in the military judicial system in 2021. The amendment of the Military Court Act in 2021 is considered the most remarkable reform of the military judicial system to date. The fundamental direction of this amendment can be summarized as structural changes in the military trial system, civilian oversight, and the protection of victims in military litigation processes. Nevertheless, these reforms did not resolve all issues, highlighting the remaining challenges ranging from structural problems inherent in the Military Court Act to constitutional, legal, and institutional issues within the military judicial system. The proposed improvement measures thus far demonstrate that social consensus aimed at addressing various problems within the military has been partially accepted, leading to significant changes. It is essential to prioritize the independence, fairness, and transparency of the military judicial system through gradual changes. Additionally, the Constitution’s provision allowing for the establishment of military courts as special courts seems to aim at ensuring a certain degree of autonomy for the military judicial system within the framework of the Constitution. Therefore, recognizing the military court as a special court that considers the unique characteristics of the military, the military judicial system must be established clearly in constitutional, legal, and institutional terms, and it must be maintained and developed in alignment with constitutional order and judicial justice.