모든 군인의 인권과 상관의 명령권

Abstract

In order for a military organization to perform its military duties efficiently, it would be ideal for duty-bearers to have the same capability as machines to carry out the commands without any error. However, agents who(or what) fulfill such ability still include human-beings. In particular, excessive commands or directives beyond the scope necessary for military duties are issued as a matter of practice for soldiers living in barracks. As members of a hierarchical organization, soldiers must follow the commands or directives issued by the superior officers rather than question the validity or reason of the basis of commands. Claiming their individual human rights is very difficult in practice. In a situation where legal norms and living standards, which regulate soldiers to obey the commands issued by the superior, are mixed, the conception that puts the command authority prior to the human rights is deeply rooted in the soldier's perception. This article examines whether the educational method that puts command authority prior to human rights is normatively and logically valid, and the prejudice of instructors or commanders who educate soldiers on military human rights leads to understand the fundamental rights of soldiers narrowly in the process of cataloging the basic human rights guaranteed by the Constitution. For solving these problems, it explores the legal status of soldiers and the guarantee and restriction of th basic rights of soldiers who are equal to the the other ordanary, namely non-soldier citizens. On this basis, it reminds that the command authority of superior officer’s comes from all citizens, including soldiers. Furthermore it articulates that guaranteeing the human rights of all soldiers is fulfilling their responsibilities or accontabilitis as superiors included in command authority.