12·3 비상계엄의 위헌성 논증

초록

Article 77 (1) of the Korean Constitution stipulates the president's authority to declare martial law as prescribed by law when it is necessary to respond to military needs or maintain public well-being as a force in a national emergency such as wartime or incident. Therefore, the president's authority over martial law under Article 77 (1) of the Constitution should be exercised for the purpose of overcoming 'in situations of war, incident, or equivalent national crisis'. However, the authoritarian power group in modern Korean history abused the constitutional martial law in violation of the rule of law for the purpose of extending and maintaining the authority over martial law. It is also a historical fact that it violated basic rights such as freedom and rights of the people. President Yoon Suk Yeol's declaration of emergency martial law was no different from the past abuse of martial law rights by authoritarian power groups. On the surface, President Yoon Suk Yeol said he would protect the free order of the Republic of Korea from anti-state organizations, but the fact that the National Assembly declared martial law warning to the opposition after the 12․3 emergency was lifted also shows that he abused the authority over martial law under Article 77 (1) of the Constitution for his political purposes and power. Moreover, it is clear that martial law proclamation No. 1, declared by President Yoon Suk Yeol after declaring the 12․3 emergency martial law, was unconstitutional, violating the principle of warrantism in the Constitution. Therefore, President Yoon Suk Yeol's 12․3 emergency martial law is merely an unconstitutional exercise of power that violates the Constitution and laws for the purpose of maintaining power, and cannot be recognized as an act of governance by the President for political purposes. Moreover, even if President Yoon Suk Yeol's 12․3 emergency martial law was a ruling act, it must be judged illegal by judicial review in that it aimed to violate the basic rights of the people and invade constitutional institutions to destroy the constitutional order. It is clear that power belongs to individuals who have delegated power, not to those in power, and that the purpose of exercising power should be exercised for individuals who are delegates.

키워드