The Basic Issues Of Military Law In Wartime

In the constitutionalism dominion,this article focused on how to rule the military power in wartime. The basic contradiction of military law in war time is how to rule military power and the protection for civil rights. Through the above analysis, the basic issues in wartime military law mainly include the formation of state of war, wartime troop's employ, military power's controlling society instead of administrative power and people's basic rights'restriction and guarantee. Based on analyzing the wartime military law and practice in civil law system and case law system, it summarizes the developing characteristics and skeleton of wartime military law. Last, it presents several suggestions to build our country's military law in wartime.The article is divided into five chapters. The first chapter proposes the significance of studying military law in wartime. Then the article defines the concept of“military law in wartime”is that in state of war, the collection of the law which adjust the military society relationship and control the military power, provided and recognized by the country as well as protected to implement by national mandatory. The article then identifies the studying scope and the research methods.Chapters II introduces the development and evolution of“military law in wartime”abroad, and summarizes the characteristics of“military law in wartime”of the United Kingdom, the United States, France and Germany, at the emergence, development and mature stage.Chapter III discusses the theoretical issues regarding“military law in wartime”of our country, including history of the evolution of it, the characteristics of it, and the value of it, as well as its extension problems. Chapter IV analyses present legislative status of“military law in wartime”in the constitutionalism dominion. Through the above analysis, the article proposes that the present system of“military law in wartime”is not good enough, and the legal norms have defects such as meanings are not clear, positioning is not accurate, and the provisions of the power and the obligation are imperfectIn last chapter, the author proposes the legislation principle and the legislation pattern of the military law in wartime, and has initially constructed several most basic law of it. First, the legal regime of“state of war”contains the decision and the announcement of state of war, and the deadline as well as the termination of it. The significance of law of“state of war”lays in it to decide the outset and the termination of utilization of military authority in wartime. Then, the principles and procedures of the military utilization in wartime are provided by the legal system of military utilization. That the military has the function and the responsibility is the logic premise, as well as the foundation and basis for the military utilization. The reasons of military utilization contains the war, the civil strife, the military force assistance public security and the non-military force use, The author thought that any principles of the military utilization could be induce into the necessary and the definition, and also analyzes and enumerates the above principle exceptional cases. Once more, the article elaborates the general questions about the exercise of military legislative power in wartime, the administration power, and the jurisdiction. Finally, the article proposes the limitations to the restriction to the rights of citizens, and by the establishment of the judicature in wartime relief, the national compensation legal system, to protect citizen's basic rights. After all, to protect the citizen's basic rights is all legal issues basic end-result.