계엄제도에 관한 비교법적 고찰 - 미국을 중심으로

Abstract

Compared with Korean legal system, the U.S. martial law system has the following characteristics. At first, there is no Uniform Martial Rule Act at either federal or state level. The U.S. Constitution has no Article mentioning martial law. No federal statute with prospective effect prescribes martial law or martial rule. In the past a few retroactive statutes had only ratified the President's or military commanders' declaration of martial law. Secondly, the authority to institute or proclaim martial law within the United States is vested in the legislative departments of the federal and state governments. The legislatures authorize the President's or Governors' enforcement of martial law by means of retroactive or prospective statutes. On the other hand the Korean Constitution authorizes the President to declare martial law. Thirdly, in the Unites States judicial review of proclamation and enforcement of martial law is very active while the Korean Supreme Court rejects to review them holding that they are political questions. Fourthly, the effect of declared martial rule is not clearly defined by statutes in the United States. Constitutions or statutes of several states prescribe merely the requisites and procedures to declare martial law. It is within the discretion of the Governor issuing the executive order empowering the military command to decide how the martial rule should be exercises.