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군내자살처리자에 대한 국가책임 / 이재승
원문 내용 공개(PDF 파일 등)는 민주법학 통권 제34호 발간 후에 이루어집니다.
민주법학 통권 제33호는 온라인서점 등에서 구입하실 수 있습니다.
민주법학 통권 제32호까지의 원문 내용은 본 자료실에서 확인하실 수 있습니다.
[국문주제어]
자살, 국가책임, 안보재해, 업무관련성, 군인연금
State responsibility for the self-destructed soldier
Jaeseung Lee
Professor, Chonnam University
Korean contemporary history shows that over twelve thousand of soldiers have committed suicides in times of military service since 1950. Korea Government has attributed even the most suspicious deaths to the willful misconduct of the soldier. Many army experts or lawyers don’t believe the findings of the military investigation agency coordinated by the ministry of National Defense. They conclude that military investigation agencies are not reliable in independent authority and professional competence.
The military compensation and pension law of Korea stipulates that government has no legal liability for soldier’s suicide in case that soldier’s suicide was a result of willful misconduct. The courts require that there should be a service connection in suicide or a causal connection between illness or human rights abuse and suicide. Exceptionally, courts accepted partial liability from state torts for soldier’s suicide in the limited range.
This article tried to establish the logical or ethical reasons for state liability for soldier’s suicide and show the direction for revision of the military compensation or pension acts in order to do justice to the family of the deceased. There are some reasons to be taken seriously for state liability such as state torts, liability from special risk, liability from status of total guarantor, liability from social solidarity etc. Strictly speaking, acknowledgment of state liability for soldier’s suicide is a matter of the current Government to cope with and purge the crimes and injustice of the prior authoritarian Government.
In this regards, US military pension law suggests some good alternatives. According to Code of Federal Regulations, the act of suicide is considered to be evidence of mental unsoundness. Furthermore, any reasonable adequate motive for suicide is to be proved by affirmative evidence showing circumstances which could lead a rational person to self-destruction. US Code takes a positive measure for the bereaved with the result that any reasonable doubt should be resolved favorably to support a finding of service connection.
This article tried to adopt the concept ‘defense accident’ with a view to solving the aporia of the service connection and causal connection in suicide. The bereaved family does not need to prove the service-connection in suicide under the concept of the defense accident any more. State assumes exclusive and objective liability for the self-destructed soldier by way of the renewal of veterans pension law.
[Key Words]
Suicide, state liability, defense accident, service connection, soldier pension
