What Will Happen If the President Is Arrested...

Published 11 Dec.2024 13:58(KST)

As prosecutors investigating the December 3 emergency martial law incident are probing President Yoon Seok-yeol for the crime of insurrection, the legal community largely believes that the detention and investigation of President Yoon have become inevitable. It is expected that an arrest warrant may be issued as early as this week. In the legal academia, many interpret that if a sitting president is detained, and impeachment does not occur, the state affairs will be operated under an acting authority system.

Citizens urging the vote on the impeachment motion in front of the National Assembly in Yeouido, Seoul, on the afternoon of the 7th. Photo by Yonhap News

The crime of insurrection is punished differently depending on whether one is a ringleader, a key participant, or a simple accomplice. Prosecutors view President Yoon as having played the role of the mastermind by directing the declaration of emergency martial law in this insurrection.

Conflicting Interpretations: Accident or Vacancy?

As the unprecedented situation of a sitting president being detained approaches, interpretations differ on whether this should be seen as a temporary inability to perform duties (‘accident’) or a loss of office (‘vacancy’). If interpreted as an accident, state affairs continue under an acting authority system; if a vacancy, a presidential election must be held.

Article 71 of the Constitution states, “When the president is vacant or unable to perform duties due to accident, the Prime Minister or the order of State Council members prescribed by law shall act on behalf of the president.” However, Article 68, Paragraph 2 of the Constitution stipulates, “When the president is vacant or the president-elect dies or loses qualification due to judgment or other reasons, a successor shall be elected within 60 days.”

In the legal academia, the dominant interpretation is that presidential detention should be regarded as an ‘accident.’ The suspension of duties due to detention is temporary, and there is a possibility of returning to office depending on the verdict, which differs from a vacancy. Therefore, it is analyzed that the only definite ways to suspend the presidency are impeachment or resignation.

A criminal law professor at a Seoul law school said, “Presidential detention can be seen as an ‘accident’ under Article 71 of the Constitution,” adding, “Vacancy is an irreversible situation, but arrest or detention may allow a return depending on future court rulings, so it is difficult to consider it a vacancy.”

A former constitutional research officer explained, “Vacancy involves death, impeachment dismissal by the Constitutional Court, loss of eligibility by judgment, resignation, etc., which fundamentally include judicial decisions,” and “Accident refers to cases where the president cannot perform duties due to custody or other reasons.”

Professor Han Sang-hoon of Yonsei University Law School (President of the Korean Criminal Law Association) said, “It is reasonable to view it as an ‘accident.’ If the president is only detained and not indicted, there could be controversy over suspension of duties.” He added, “Since insurrection is a serious crime, entrusting the president with state affairs is highly unreasonable. If the State Council officially resolves to switch to an acting authority system, it will become legally clear.”

According to Presumption of Innocence, Suspension of Duties May Be Difficult

On the other hand, there is an interpretation that it is difficult to view the president’s detention as an ‘accident’ and that duties cannot be suspended based on the presumption of innocence.

Professor Lee Chang-hyun of Hankuk University of Foreign Studies Law School (specializing in criminal law) said, “Due to the presumption of innocence, detention of the president does not mean suspension of duties,” citing that the Constitutional Court ruled that even when a mayor or governor was convicted in the first trial, suspension of duties was not possible.

Professor Kim Seon-taek of Korea University Law School (specializing in constitutional law) said, “The fact that the president was arrested or detained alone cannot be considered an ‘accident,’” and “Even if the president becomes a suspect under the presumption of innocence, duties cannot be immediately suspended.”

Arrest Warrant Review and Execution Will Be the Same

If investigative authorities request an arrest warrant for President Yoon, the warrant review will proceed according to standard procedures. Also, if the prosecution directly requests a warrant for insurrection, the prosecution’s investigative authority may be challenged during the hearing process.

Opinions differ on whether the warrant can realistically be executed if the court issues it. A law professor in the Seoul area said, “Legally, the president can be arrested and detained, but the Presidential Security Service will likely not cooperate,” adding, “The Security Service’s mission is to protect the president’s safety, so actual execution of detention seems difficult.”

On the other hand, a lawyer who served as a judicial research officer said, “The Security Service has no way to block the execution of the warrant,” and “If they try to block it, it would be obstruction of official duties. Even the president cannot avoid the execution of an arrest warrant.”