軍內 死亡事故 調査制度의 發展方案에 對한 硏究 : 피해자 배려시각을 중심으로 = A Study on the Investigating Institute of deads in the Korea military

다국어 초록 (Multilingual Abstract)

The purpose of this paper is to analyze the investigation system of military deaths in the victimological perspective, and contemplate how they may be constructively improved. An attempt was made to find the way that minimizes the negative aspects of the current methodologies while strengthening their positive sides for increased efficiency and to put a priority on human rights. This study will help the people mourning from deathly accidents in the military and the investigators who are investigating them, aid in improving human rights of soldiers, and improve the integrity of the military in the eyes of the civilian world.
I first examined the current administration of investigative policies and its problems. Investigation of death accidents refers to the legal process of the investigative institution's search for the cause of the accident, treatment of the dead and the people involved, the dead body, and other follow-up measures. "Initial investigation" is an operative term for the purposes of research and is defined as the investigative activities played by institutions such as the MP. "Secondary investigation" is a reinvestigation phase that, after the initial investigation is carried out by the PCSDM(Presidential Commission on Suspicious Death in the Military), the ACRC(Anti-Corruptiom and Civil Right Commission), and after civil petitions have been accepted and processed by the MND, Army, Navy and the Air Force, additional civil petitions are submitted about the initial investigation results. Influenced by the recent democratization of South Korean society and increased awareness of human rights, and the influence of victimology as a discipline, a new perspective has been called for in terms of investigating military death incidents. It was necessary to operate an accident investigation and processing policy that is more sensitive to the feelings of the victims including suicide victims, the bereaved, fellow comrades and individuals in the base.
Accidents within the military have taken 8,951 lives since 1980 to 1995. This means 559 people died every year. Among those thousands, 3,263 are suicide victims, which means that deaths determined as suicide upon investigation were 36.4% of the total. During late president Kim Dae Jung's administration death incidents in the military decreased significantly, so while 248 died in 1998, only 158 people died in 2002. In addition, while the absolute number of suicide victims have been reduced, the ratio of cases determined as suicide have increased to 50% from 36.4% in 1980-1995. During the late Roh administration 125~150 people died per year; in total 672 people died which is an average of 134 deaths per year. Cases determined as suicide is an even higher 54%. Democratization was furthered during these two regimes and so did the human rights conditions within the Korean military. During these periods civil petitions regarding death incidents also significantly increased. In the military, the Special Investigation Corp, KCIC carried out the reinvestigative efforts, and outside of it institutions such as the PCSD, the PCSDM, investigated civil petitions. Meanwhile, in the year 2009 71.7% of all deaths were suicide. Such a high statistic is a clear indicator that democratization, amelioration of service environments, and the civilian and military interest in death incidents have reduced the absolute number of deaths by a significant number and that suicides have decreased with it.
We can conclude by this analysis of various death incidents that the overwhelming majority of death incidents is suicide. During the past five years the suicide rate among deaths was 60.4%. As beforementioned that number in 2009 was an astonishing 71.7%. Therefore it can be said nowadays that the ability to handle suicide incidents correlates to the competence of investigators and investigative institutions.
While efforts within the military to reduce accidents have succeeded to some extent, civil petitions raising doubts about the integrity of investigations have not ceased. Civil petitions about death incidents arose from a combination of factors such as an increased awareness on human rights, policy related problems on the processing of death accidents, and the insufficiency of investigative activities.
Civil petitions are one of three types. Either petitions have an objection to the military and military institutions' investigative conclusions, raise suspicion about the investigation content and try to intervene, or have a conflicting issue with an administrative bureau. Funeral delays or the corpse/remains refusals were also one of the issues. Currently the military is storing 76 bodies related to military death incidents. 27 in military hospitals, and 49 bodies in distribution battalion shrines. Types of suicide methods used were the use of firearms: 28, fall: 9, hanging: 31, and other 8. The likelihood of the bereaved filing a civil petition increases when the dead are not determined to be killed in action, or when they are listed among those responsible for the deaths. Especially, if the bereaved families are wealthy or powerful, the families are more likely to dissent from the results of the reinvestigation, accuse the installation or the investigative organization for wrongdoing, and raise stronger objections. Due to the influence of democratization and spread of the internet, the media and on/offline NGOs spread the word about death occurrences within the military, and request aid and intervention in the investigation processes. The bereaved family members either file a reimbursement suit to the government, or file administrative or civil suits demanding to be categorized as killed in duty. Mostly the prosecution (the bereaved families) lost the suit.
Full-time reinvestigation institutions in the military include the MND CIC, and outside the military is the ACRC. The temporary the Presidential Commission on Suspicious Death in the Military, which was active during the Roh administration was a secondary investigative institution. I will describe their activities as follows.
First, The Presidential Commission on Suspicious Death in the Military filed 600 petitions for the four years in service. Of these 294 petitions they investigated (49% of the total), 246 files they found the truth, and for 48 other cases determined that they couldn't find the truth to the incidents. 17 of the 248 amended cases were those that were claimed to be suicide but were actually other types of accidents, 55 of them were suicides but were connected to violence and torture and other unjust practices, and 22 were work-related deaths, they announced. But of these 248, 47 dead were only deemed to be killed in action.
Second, the MND CIC accepted 514 petitions and finished investigating 477 (92%) of all. Of these, the 253 cases that were completed between 1999~2005 the MND and the Army/Navy/Air Force Operations Command accepted the petitions and processed them. Investigation of 319 cases confirmed the initial investigation's results, or did not bring a change to the status of the dead, making up 62% of the entire petitions filed. The number of cases in which petitions changed the status of the dead through reinvestigation was 101 cases, making up 19.6% of the total. 86 of these cases were deemed killed in action.
Third, the National Defense, Patriots and Veterans Complains Division of the ACRC acts as the ombudsman of the military and solves dilemmas relating to the military. The NDPVC reinvestigates with the goal that as many as possible of those involved in accidents be categorized as "killed in action". Regarding deaths in the military, 160 cases were filed and processed.
The reinvestigation of these institutions produced both positive and negative functions. As a result of these activities the truth of incidents within the military was revealed, and positive results were brought about such as the advancement of investigative abilities or the human rights conditions of individual soldiers. Especially the categorization of dead people changed so in many cases the honor of deads were recovered. But the activity of reinvestigation itself was ridden with limitations and strictures. The waste of human and material resources as well as the pain of those involved were two of them. Investigators were also in pain because the bereaved families were emotional and required unlimited responsibilities toward the installation, members, investigators, and perpetrators of the accident. The reduction of conflict, reconciliation and forgiveness, tolerance and the policy of inclusion were in short supply.
Some referents were uncooperative or avoided the investigation because they did not want to reminisce a painful event. Sometimes they complained that the investigative institutions were pursuing them regardless of the prescription of suit; as a result they believed their identification was breached and others looked at them with an eye of suspicion or incrimination, so they demanded that the rule of double jeopardy(ne bis in idem) be kept. They expressed fatigue from repetitive interrogation and their hate and conflict amplified instead of forgiveness and reconciliation be fostered. This phenomenon was especially grave as many incidents were investigated by many institutions or were repetitively broadcasted by media.
There were some cases in which secondary or tertiary victimization occurred or more losses were incurred to the victims themselves. One death incident became an emotional burden to fellow soldiers, and when a first lieutenant died the death suit became somewhat a displacement of sorrows instead of an occasion to find the truth and bring about harmony and protect the rights of the nation's people as a whole, and last but not least, some people were named immoral or murderous and were put in an even more difficult situation.
In the past, most of the criminal investigative processing systems in the military were basically focused on "accident processing". Military installments and primary investigative institutions based themselves on the routine processing of perpetrators and dead bodies. This was because continuancy on the battlefield required efficient and quick administrative work. Death accidents were interpreted in terms of how detrimental loss of life was to fighting ability. For instance, attempted suicide was once punished under the "evasion of duty" law. Because honor and military spirit was emphasized, deaths due to accidents or to suicide were not given fair treatment, and left out were the colleagues and indirect victims of the dead from the investigation procedures. This situation called for a criminal investigation that put victims in the center.
From the late 1990s to the year 2009, the military amassed temporary investigative groups to focus only on incidents that gained intense national interest. The government also established a special law that backed the founding of the Presidential Commission on Suspicious Death, the Presidential Commission on Suspicious Death in the Military, and tried to solve military deaths which were receiving the public's interest through these institutions. But despite such policies and responses civil petitions regarding military death incidents did not cease, and the bereaved and NGOs were not satisfied. Reinvestigations to civil petitions did not bring full closure. Evidently, the families submitting those petitions were unaccepting of the conclusion that their loved one had committed suicide. Therefore, it was inevitable to draw the conclusion that 'remedies on investigative methodology could not fully' solve doubts about death incidents in the military and reduce civil petitions. Also, with temporary groups such as the Presidential Commission on Suspicious Death in the Military, we realized that it was impossible to tackle the public controversy that arose in connection to military death incidents. Vague regulations regarding repeated and/or redundant civil petitions, and reinvestigative regulations regarding civil petitions which delineated the investigative institution's rights and duties, as well as that of the petition filer's, the goal and investigative methods, were all lacking and incomplete.
I analyzed in-depth how the current death incident investigation and processing policies did not cater enough to the victims' needs. Today's policies and strategies focusing on swift processing of dead people were deemed unfit in the 2010s. Problems regarding the lack of considerateness in the death processing policy were analyzed, as well as those regarding victim relief and protection policies. Limitations on the investigative group's organization and human resources, budget and instruments, and investigative policy management such as the standard investigation procedure and investigation manual were found. A need was found to improve the individual proficiency of investigators and the scientific investigation policy.
Therefore for the harmony of the citizens I proposed that a forward looking death accident investigative policy should be managed like the following. First, we need a comprehensive strategy and response to death incidents. Second, we should expand the victim relief policy and be able to investigate the victims and operate victim consulting facilities. Third, revising the regulations on the management of the dead in the military, burying the dead in military in the National Cemetery and so on were put forth. Fourth, a way was thought about to gain the support and peoples' interest. Fifth, a way was devised to improve the investigative capabilities of individual investigators and therefore improve the professionalism of investigators, and also put to use outside investigative competency. Sixth, a way was devised to activate reinvestigation functions. For instance, we needed to expand the organization, expand the role and range of action of these institutions, and discuss whether reinvestigation under the direct control of these institutions were necessary. Seventh, the establishment of a standard reinvestigation procedure and a smooth management was devised. Last, professionalism, scientific investigation, and the ability to handle death accidents, needed to be strengthened, and the introduction of scientific investigative programs and its application was discussed.
In conclusion, we need to improve the military's investigative programs and administrative policies regarding the processing of death incidents. Perpretrator-centered, homi/suicide divided, and classification of the deads, centered investigations need to be replaced by vicitomological policies and investigations. Reinforcement and expansion of permanent investigative institutions such as the MND CIC and a more proactive investigation is necessary. Victims should be investigated and victim consulting facilities should be operated. We need to minimize the negative aspects and maximize the current aspects of the current policies in order to create a more efficient and human rights oriented process. Scientific investigation and investigator professionalization should lead to the discovery of the corporeal truth, and the clarification of causes of death. A general policy of considerateness, tolerance and collaboration on those suffering from military death incidents should be implemented.

목차 (Table of Contents)

• 第1章 序論 1
• 第1節 硏究의 目的 1
• 第2節 硏究의 方法과 範圍 3
• 1. 연구의 방법 3
• 2. 연구의 범위 4
• 第2章 理論的 背景과 檢討 7
• 第1節 用語의 定意 및 關聯理論 7
• 1. 관련용어의 정의 7
• 1) 사망 및 군내 사망사고 7
• 2) 사망사고 조사와 재조사 10
• 3) 피해 및 피해자 13
• 2. 피해자에 대한 이론 14
• 1) 피해자와 가해자의 관계 16
• 2) 피해자의 유형 17
• 3) 피해자에 대한 보상 21
• 3. 군내 사망사고의 원인과 피해 24
• 1) 사망사고의 원인 25
• 2) 사망사고의 피해 27
• 第2節 先行硏究의 檢討 34
• 1. 국내연구 34
• 1) 군 및 정부기관 34
• 2) 학계 및 유가족 단체의 연구 36
• 2. 해외연구 37
• 1) 미, 영, 대만 정부기관의 재조사 37
• 2) 피해자학회 및 인권운동가의 연구 41
• 第3章 軍內 死亡事故 現況과 調査 實態 44
• 第1節 軍內 死亡事故 現況 44
• 1. 사망사고 발생현황 44
• 1) 사망자 현황 44
• 2) 사망사고 유형별 현황 46
• 2. 사망사고 처리 절차 47
• 1) 사망의 보고 및 구분 47
• 2) 사망의 확인과 통보 48
• 第2節 1次 調査機關의 調査 活動 52
• 1. 1차 조사 절차 52
• 1) 헌병대의 조사 52
• 2) 기타 기관의 조사 57
• 2. 민원화 과정과 양상 60
• 1) 의혹의 발생 61
• 2) 민원의 양상 63
• 第3節 2次 調査機關의 再調査 活動 69
• 1. 재조사 민원 실태 69
• 1) 군의문사위의 진정처리 70
• 2) 국방부조사본부의 민원조사 75
• 3) 기타 기관의 민원처리 82
• 2. 재조사의 성과 86
• 1) 순기능 86
• 2) 역기능 88
• 第4章 現 事故 調査 및 處理 制度의 問題點 分析 92
• 第1節 政策과 法規의 不適切性 92
• 1. 사고처리 위주의 정책과 전략 92
• 1) 기본 시각 92
• 2) 재조사 정책의 오류 95
• 3) 국민지지와 공감부족 97
• 2. 피해자 배려가 부족한 법규 97
• 1) 전사망자 처리규정 98
• 2) 피해자 구제와 보호규정 101
• 第2節 調査制度 運營의 問題點 103
• 1. 조사조직과 인력 102
• 1) 1차 조사기관 103
• 2) 재조사기관 105
• 2. 예산과 장비 106
• 1) 헌병의 예산과 장비 106
• 2) 군의문사위의 예산 107
• 3. 조사실행 및 활동간 제한 요인 109
• 1) 표준조사절차와 원칙 109
• 2) 재조사 활동의 제한요인 111
• 第3節 調査관의 專門性 및 科學搜査 水準 113
• 1. 전문화된 조사능력 113
• 1) 전문화 수준 113
• 2) 전문화 평가와 유지 114
• 2. 과학수사 수준 115
• 1) 과학을 이용한 조사활동의 정도 115
• 2) 법과학자들과의 의사소통 오류 117
• 第5章 制度의 發展 및 活性化 方案 120
• 第1節 綜合的인 對策과 戰略의 樹立 및 施行 120
• 1. 피해자 구조제도 확대 121
• 1) 순직외 사망피해자의 예우 121
• 2) 피해유족에 대한 처우의 개선 123
• 2. 관련 피해자에 대한 사후관리 126
• 1) 피해자 조사의 실시 127
• 2) 피해자 상담실 운영 128
• 3. 국민적 관심과 지지획득 130
• 1) 신뢰제고 활동의 전개 130
• 2) 적극적인 대국민 홍보 활동 132
• 第2節 調査機關의 能力向上과 發展 134
• 1. 조사능력의 향상 134
• 1) 조사인력의 전문성 향상 134
• 2) 초동수사능력의 강화와 장비보급 136
• 3) 군외 전문가의 활용 138
• 2. 재조사 활성화 140
• 1) 재조사 조직의 확대 140
• 2) 직권에 의한 재조사 실시 140
• 3) 재조사절차의 표준화 및 유연성 확보 142
• 4) 조사기록의 표준화 및 보존 144
• 第3節 調査官의 專門性 向上과 科學的인 調査活動 146
• 1. 기본역량 강화 및 전문화 146
• 1) 현장감식 능력의 강화 146
• 2) 자살사고 조사능력의 전문화 147
• 2. 과학적인 조사방법의 도입과 활용 148
• 1) 다양한 법과학의 활용 148
• 2) 최신 과학수사 장비의 도입 150
• 3) 심리부검과 정신의학적 조사 151
• 第6章 結論 154
• 參考文獻 158
• ABSTRACT 166