The Study of the Unlawful Command Influence in USA Court Martial

Abstract

Korea military court system has been strongly criticized as unfair and impartial by the public since it was established, even though it has been decided constitutional by Constitutional Court. The most prominent reason of the criticism in the military justice arena today may be focused on the issue of the commander’s powerful influence to the military court which grants the Commander much authority the civilian court can not imagine. Nevertheless the military court law has been decided constitutional and respected from the Supreme Court which has admitted the special character of the military. The commander's imperative need is to communicate military mission to subordinates in order to instill discipline and good order. This interest is fundamental in the heart of the commander's duties. However, it often conflicts with another compelling military interest which is to maintain a fair and impartial system of military justice. The soldiers carry out the holy duty which is to protect the people’s life, property and freedom. They are actually Constitutional Agency to defend the Constitutional value. In the course of performing their mission, sometimes they may mistake or commit criminal action. Especially under the Korea military culture every soldier is likely to be criminal offender. In this situation they may become the criminal defendant the Commander dislikes very much. The Commander want to punish him severely to avoid the recurrence. It is impossible for the defendant soldier to challenge the unfair treatment by the Commanding group. In the end he could not have fair trial from the military court. Korea military court system was made following USA court martial system. But it skipped the most crucial provision, Unlawful Command Influence. The reason why USA established Uniform Code of Military Justice(UCMJ) is because of the commander’s unlawful influence to the military court. USA has a good mechanism to control or check the commander’s authority by UCI article. But Korea military court law did not accept it. Consequently speaking Korea military court law need to be revised toward enacting UCI to prohibit the commander from exercising unlawful command influence to the military court. Korea military court act is a bill of rights for the military accused or defendant. The military court must be operated by the due process of law. The soldier in military court may be treated worse than civilian under the strong influence of the commander’ authority. In order to keep the principle of the weapons equal in the criminal procedure, it is urgent to legislate provision prohibiting the commander from exercising unlawful command influence. Military personnel also is included as a subject of individual right. The protection of individual human rights is more than ever a central issue within our society today. This article deals with the UCI in USA to find out the best point in order to maintain strong morale and good discipline in Korea military.