The Upcoming Constitutional Court Session... Judgment on 'Serious Legal Violations Justifying the Removal of the President'

Democratic Party Expected to Complete Consent for Appointment of 3 Judges by Year-End
Suspension of Duties from Receipt of Copy of Impeachment Resolution

The second impeachment motion against President Yoon Suk-yeol is expected to be put to a vote on the 14th. The first impeachment motion, which was previously submitted, was dismissed due to a lack of quorum, but as the number of lawmakers from the People Power Party supporting impeachment is increasing, the possibility of its passage cannot be ruled out.

If the impeachment motion against the president is approved with the support of two-thirds (200 members) of the total members, President Yoon's exercise of authority will be suspended from the time he receives a copy of the impeachment resolution in accordance with Article 50 of the Constitution and Article 134 of the National Assembly Act until the Constitutional Court's judgment.

Acting Chief Justice Moon Hyung-bae of the Constitutional Court and the justices entered and took their seats at the public hearing on the authority dispute trial regarding the Election Commission's 'Recruitment Corruption Audit' held on the afternoon of the 10th at the Grand Bench of the Constitutional Court in Jongno-gu, Seoul. Photo by Yonhap News

The prosecution is expected to soon move to secure President Yoon's custody. Although there is a precedent where a local government head operated the provincial administration while detained, the Local Autonomy Act was later amended to include a provision that allows a deputy head to act on behalf of the head if the head is detained after prosecution. While this provision cannot be directly applied to the president if he is detained before the National Assembly's impeachment resolution, it may serve as a reference in determining whether governing from prison is possible. Political and legal circles widely interpret that it would be impossible to perform de facto duties such as presiding over Cabinet meetings or presenting credentials to diplomats.

According to the Constitutional Court Act, at least seven justices are required for impeachment hearings, but since the injunction filed by Lee Jin-sook, Chairperson of the Korea Communications Commission, was accepted, suspending the effect of Article 23, Paragraph 1 of the Constitutional Court Act?which sets the quorum for constitutional court judgments at seven?hearings can currently proceed with six justices.

However, opposition parties including the Democratic Party plan to complete the confirmation hearings for the new Constitutional Court justice candidates around Christmas and approve the appointment proposals without carrying them over to the new year. Since at least six justices must agree to uphold the impeachment, if the vacant justice positions are not filled and the final ruling is reached, a single dissenting justice would result in the dismissal of the impeachment petition. For the National Assembly's recommended justices, the Democratic Party has nominated Jung Gye-seon, Chief Judge of the Seoul Western District Court, and Ma Eun-hyuk, Presiding Judge of the Seoul Western District Court, while the People Power Party has nominated lawyer Jo Han-chang. The selection proposals for these three candidates have been submitted to the National Assembly.

Even if the impeachment motion against President Yoon is passed and a proxy authority system is established, there is little expectation of problems in appointing Constitutional Court justices based on the precedent set during former President Park Geun-hye's impeachment. Article 111 of the Constitution stipulates that all nine justices are appointed by the president, with three appointed from those elected by the National Assembly and three nominated by the Chief Justice of the Supreme Court. Therefore, the three candidates recommended this time are for the National Assembly's quota, and the president's appointment is largely a formality. Legal circles generally agree that a proxy with maintenance-of-status authority can sufficiently exercise the appointment power.

Article 38 of the Constitutional Court Act sets the hearing period as "within 180 days from the date the case is received." Previously, it took 91 days for the impeachment ruling of former President Park and 63 days for former President Roh Moo-hyun.

Currently, among the six Constitutional Court justices, Kim Hyung-doo, Jung Jung-mi, Jung Hyung-sik, and Kim Bok-hyung are classified as moderate or conservative, while Moon Hyung-bae and Lee Mi-seon, appointed by former President Moon Jae-in, are classified as progressive. However, in President Yoon's case, since the conclusion will be determined based on whether the conditions for declaring martial law are met and whether there were legal violations during its execution, it is analyzed that the justices' political ideologies or leanings, whether conservative or progressive, will not significantly influence the judgment.

Seoul Eastern District Prosecutors' Office, where the Special Investigation Headquarters for the Prosecutor's Emergency Martial Law is established. Photo by Yonhap News

Previously, during the 2004 impeachment trial of former President Roh, the Constitutional Court ruled that "the phrase 'when the impeachment petition is justified' in Article 53, Paragraph 1 of the Constitutional Court Act refers not to all legal violations but only to 'serious' legal violations that justify dismissal from public office," acknowledging that former President Roh violated the political neutrality obligation under the Public Official Election Act but dismissing the impeachment petition.

At that time, the Constitutional Court stated, "It is very difficult to generally define what constitutes a serious legal violation justifying dismissal of the president, but a dismissal decision is justified only when maintaining the president's office is no longer acceptable from the perspective of upholding the Constitution or when the president has betrayed the people's trust and lost the qualification to govern."

On the other hand, regarding former President Park in 2016, the Constitutional Court pointed out that allowing Choi Seo-won (formerly Choi Soon-sil) to intervene in state affairs "violated the principle of representative democracy and the spirit of the rule of law, seriously breaching the president's duty to realize the public interest," concluding that it was "a serious legal violation unacceptable from the perspective of upholding the Constitution as an act betraying the people's trust."

In President Yoon's case, the charges involve declaring martial law without meeting the requirements, seizing control of the National Assembly, and attempting to prohibit the political activities of the National Assembly, which holds the right to demand the lifting of martial law, in violation of the Constitution and the Martial Law Act. Therefore, the allegations are considered far more serious constitutional and legal violations, making it difficult to compare with previous cases on the same level.

Professor Kim Seon-taek of Korea University Law School stated, "The Constitutional Court will not specifically determine whether the crime of rebellion is established but will use it as a reference for judgment," adding, "They will evaluate President Yoon's declaration of martial law, the riot that occurred in the National Assembly on the 3rd, the raid on the National Election Commission, and other related incidents to prove that it was not constitutional martial law and conclude whether it is appropriate for the president to continue holding office."

This content was produced with the assistance of AI translation services.