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과제정보

과제정보
과제명 자해사망 군인의 예우에 관한 외국 법제 및 적용방안 연구
기관명 국방부 담당부서 군사망사고진상규명위원회(파견)
전화번호 02-6124-7436 연구기간 2019-10-21 ~ 2020-01-21
연구분야 국방행정지원
개요 군인이 복무 중 자해 사망한 경우 그에 대한 국가 차원의 책임 및 예우 수준(특히, 국가유공자급의 대우를 하는 사례가 있는지를 중점으로)에 관하여 해외 주요국가의 법제, 입법동향, 법리 등을 폭넓게 연구함으로써 군 사망사고의 적정한 해결방안을 모색하고 국내 정책, 입법 등에 있어 기초자료로 활용하기 위한 과제임.

계약정보

과제정보
수행기관 건국대학교 산학협력단 [대학]
수행연구원 이재승 계약일자 2019-10-21
계약방식 경쟁 입찰 후 수의계약 계약금액 34,900,000원

연구결과 정보

과제정보
제목 자해사망 군인의 예우에 관한 외국법제 및 적용방안 연구
연구보고서
목차
제1장 서론 ······································································································1 1. 연구목적 ··············································································································1 2. 선행연구 검토 ·····································································································2 3. 한국의 보훈법제의 실태 ·····················································································4 4. 정책제안의 요약 ··································································································5 제2장 독일의 처우실태 ··················································································7 1. 자해사망자 현황 ··································································································7 2. 보훈법제 ············································································································11 3. 공상 또는 순직 인정의 조건 ············································································17 4. 자해사망과 순직 ································································································37 5. 유족에 대한 보훈급부내역 ················································································50 참고문헌 ··················································································································62 제3장 미국의 처우실태 ·················································································64 1. 미국 군대와 자해사망자 현황 ··········································································64 2. 미국의 보훈법제 ································································································71 3. 자해 사망과 직무 관련성 ·················································································77 4. 사망자에 대한 보상과 예우 ··············································································81 참고문헌 ··················································································································91 제4장 대만의 처우실태 ·················································································96 1. 대만의 군대 ·······································································································96 2. 대만의 보훈정책 ································································································98 3. 자해사망한 군인에 대한 대만의 처우실태 ·····················································117 4. 소결 ··················································································································126 참고문헌 ················································································································129 제5장 이스라엘의 처우실태 ········································································133 1. 이스라엘군대 개관 ··························································································133 2. 이스라엘군의 자해사망자 현황 ·······································································137 3. 이스라엘의 보훈제도 및 관련 법령 ·······························································146 4. 보훈조직 ···········································································································155 5. 상이군인 보상 정책 ·························································································157 참고문헌 ················································································································161 제6장 한국의 처우실태 ···············································································163 1. 한국 군대와 자해사망자 현황 ········································································163 2. 한국의 보훈법제 ······························································································167 3. 자해사망군인에 대한 보훈법제의 변화 ··························································175 4. 소결 : 한국보훈법제의 문제점 ·······································································180 참고문헌 ················································································································184 제7장 정책적 제언 ······················································································186 1. 보훈법제의 총평 ······························································································186 2. 제안방향 ···········································································································189 3. 보훈법제의 개선점 ··························································································190 4. 의무복무군인에 대한 특별규정 ·······································································195 5. 국립묘지 안장 ··································································································198
 

제1장 서론 ······································································································1
1. 연구목적 ··············································································································1
2. 선행연구 검토 ·····································································································2
3. 한국의 보훈법제의 실태 ·····················································································4
4. 정책제안의 요약 ··································································································5

제2장 독일의 처우실태 ··················································································7
1. 자해사망자 현황 ··································································································7
2. 보훈법제 ············································································································11
3. 공상 또는 순직 인정의 조건 ············································································17
4. 자해사망과 순직 ································································································37
5. 유족에 대한 보훈급부내역 ················································································50
참고문헌 ··················································································································62

제3장 미국의 처우실태 ·················································································64
1. 미국 군대와 자해사망자 현황 ··········································································64
2. 미국의 보훈법제 ································································································71
3. 자해 사망과 직무 관련성 ·················································································77
4. 사망자에 대한 보상과 예우 ··············································································81
참고문헌 ··················································································································91

제4장 대만의 처우실태 ·················································································96
1. 대만의 군대 ·······································································································96
2. 대만의 보훈정책 ································································································98
3. 자해사망한 군인에 대한 대만의 처우실태 ·····················································117
4. 소결 ··················································································································126
참고문헌 ················································································································129

제5장 이스라엘의 처우실태 ········································································133
1. 이스라엘군대 개관 ··························································································133
2. 이스라엘군의 자해사망자 현황 ·······································································137
3. 이스라엘의 보훈제도 및 관련 법령 ·······························································146
4. 보훈조직 ···········································································································155
5. 상이군인 보상 정책 ·························································································157
참고문헌 ················································································································161

제6장 한국의 처우실태 ···············································································163
1. 한국 군대와 자해사망자 현황 ········································································163
2. 한국의 보훈법제 ······························································································167
3. 자해사망군인에 대한 보훈법제의 변화 ··························································175
4. 소결 : 한국보훈법제의 문제점 ·······································································180
참고문헌 ················································································································184

제7장 정책적 제언 ······················································································186
1. 보훈법제의 총평 ······························································································186
2. 제안방향 ···········································································································189
3. 보훈법제의 개선점 ··························································································190
4. 의무복무군인에 대한 특별규정 ·······································································195
5. 국립묘지 안장 ··································································································198
초록 이 연구의 정책제안을 다음과 같이 요약할 수 있다.

첫째, 순직판정여부는 국방부와 보훈처가 합동으로 결정하거나, 단독으로 결정하는 방
식으로 일원화해야 한다.

둘째, 군인사법상 순직I-Ⅲ 유형을 사망의 등급이 아닌 사망의 유형으로 취급해야 한
다. 따라서 군인사법상 순직I, 순직Ⅱ, 순직Ⅲ을 폐지하고 순직으로 단일화하고 순직자를
모두 국가유공자로 취급해야 한다.

셋째, 앞에서 거론한 순직의 등급구분을 전제로 한 비정상적인 보훈보상자법을 폐지해
야 한다. 보훈보상자법은 순직자를 근거 없이 차별하는 법으로서 위헌의 소지도 있다. 공
무관련성이 존재하는지 여부가 순직판정의 기준이 되어야하므로 “직접적 관련성”관념을
기준으로 개정된 보훈법제는 원상회복되어야 한다.

넷째, 순직으로 인정받지 못한 일반사망(공무에서 벗어난 죽음, 고의나 중과실에 의한
죽음)에 대해서는 제한적인 보훈혜택을 제공하는 방침을 제안한다. 군인의 죽음에 대한
국가귀책사유 유무에 초점을 맞추는 단계에서 군인 가족의 불행과 곤궁을 합당하게 제거
하는 쪽으로 선회해야 한다. 이러한 유형을 ‘비순직 지원’으로 규정하고 국가유공자법
에 근거조항을 도입한다. 비순직 지원의 내용은 현재의 보훈보상자법의 지원내용에 준하
여 전반적으로 재조정한다.

다섯째, 중대한 범죄를 자행하고 유죄판결을 우려하여 자해사망한 군인의 유족에게는
유공자법상의 보훈혜택을 부여하지 않는 것은 법제적으로 용인할 수 있다. 다만 해당범죄
목록을 명시적으로 제시하는 것이 필요하다.

여섯째, 현역병 또는 의무복무중인 장교, 준사관, 부사관으로서 (자해)사망한 군인에
대해서 사망의 복무관련성을 인정(추정)하는 방침을 채택하는 것도 필요하다. 한국의 안
보상황을 감안할 때 현역병의 중압감 못지않은 초급장교나 부사관의 직업적 부담에 의한
불행한 죽음을 적절하게 고려하는 것이 필요하다.

일곱째, 군인으로서 사망한 사람은 순직 여부에 관계없이 국립묘지에 안장해야 한다.
따라서 단순한 자해사망자나 일반사고 사망자도 국립묘지에 안장자격을 부여해야 한다.
그러나 중대한 범죄를 자행하여 유죄판결을 받은 군인이나 유죄판결을 우려하여 자해사망
한 군인은 이러한 자격을 부여하지 않는다.
주제어 자해사망 군인의 예우에 관한 외국 법제 및 적용방안 연구
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