Earticle

초록

영어

A state of emergency is a governmental declaration that announces that the country is in a state of emergency. This means that the government can suspend and/or change some functions of the executive, the legislative and or the judiciary during this period of time. It alerts citizens to change their normal behaviour and orders government agencies to implement emergency plans. A government can declare a state of emergency during a time of natural or man-made disaster, during a period of civil unrest, or following a declaration of war or situation of international/internal armed conflict. Justitium is its equivalent in Roman law. Material Law a nation's emergency competence has worked out as a means in history to maintain national peace and social order. Such function and values are still valid nowadays, and the basic aim of the law is not defaced. However, there is also a problem that the material law in force now does not reflect the current times. It has been more than 20years since the law was revised. Since the realistic situation has changed so much all the while, it is necessary to revise the law reflecting the real world, wether the system is used frequently or not. Further, articles concerning the material law have many problems within, in the relationship with basic human rights. Constitution in Force now states the material law in article 77. Material law is stated with two categories of extraordinary and precautionary material law. The material law in force now is stated based on constitution. It has been revised 4 times. But the law in force now still has many problems. First, the condition to proclaim the material law is not certain. Second, the president must get consent from the assembly after the proclamation of material law, but it's more effective to get prior consent to control material law. Lastly, the law has possibility to impose excessive restriction on people's fundamental rights. Therefore, the law has to be revised to resolve those problems. It can also be used as a rationale for suspending rights and freedoms, even if those rights and freedoms are guaranteed under the Constitution. Some countries do not have an embedded Constitution such as the United Kingdom, New Zealand and Israel. Legislation covers a state of emergency in these countries. Under the protocol of the ICCPR, rights and freedoms may be suspended during a state of emergency, for example, a government can detain citizens and hold them without trial. All rights that can be derogated from are listed in the International Covenant for Civil and Political Rights. Some sources argue that non-derogable rights cannot be suspended. However this theory is contested. Emergency law does and can override non-derogatory rights during a state of emergency.

목차

Ⅰ. 서설
 Ⅱ. 각국의 국가긴급권
 Ⅲ. 한국의 국가긴급권
 Ⅳ. 결론
 참고문헌
 Abstract

키워드

저자

• 백윤철 [ Baek, Yun-Chul | 대구사이버대학교 교수. 법학박사. ]

참고문헌

발행기관

간행물

표지보기 관심저널 등록

• 간행물명

  비교법연구 [The Journal of Comparative Law]

• 간기

  연3회

• pISSN

  1598-3285

• 수록기간

  2000~2025

• 십진분류

  KDC 360 DDC 340