[16-1 KCCR 609,, May 14, 2004; 29-1 KCCR 1, 2016Hun-Na1, March 10,2017]
A. Background of the Cases
The ConstitutionalCourt decided two cases on presidential impeachment. In the 2004 impeachmentcase against President Roh Moo-hyun (hereinafter referred to as the“impeachment case against President Roh Moo-hyun”), the petition was rejected,while, in the 2016 impeachment case against President Park Geun-hye(hereinafter referred to as the “impeachment case against President ParkGeun-hye”), the petition was upheld and the President was removed from office.
The motion forimpeachment of President Roh Moo-hyun was passed by concurrent votes of 193National Assembly members on March 12, 2004, on the grounds that the Presidenthad disrupted the national law and order by supporting a particular politicalparty and playing down constitutional agencies.
While theConstitutional Court was trying the impeachment case, the 17th general electionof members of the National Assembly took place on April 15, 2004. As a resultof the general election, the ruling Uri Party with which the President wasaffiliated secured an absolute majority of seats, while the Grand NationalParty and the New Millennium Democratic Party that had pushed for theimpeachment were utterly defeated. Meanwhile, the Constitutional Court rendereda decision rejecting the petition for impeachment adjudication on May 14, 2004.In the decision on impeachment, the Constitutional Court did not indicate theseparate opinions of individual Justices and the numbers thereof in compliancewith Article 36 Section 3 of the then Constitutional Court Act. Thereupon,after much discussion on whether or not to indicate separate opinions in animpeachment decision, Article 36 Section 3 of the Constitutional Court Act wasamended on July 29, 2005, so individual Justices who disagree with the majoritywere obliged to note their opinions in an impeachment decision.
The impeachmentproceedings against President Park Geun-hye were triggered by the press reporton October 24, 2016, to the effect that key Cheong Wa Dae documents were leakedto the President’s old acquaintance, who had been secretly involved in runningstate affairs. The people were shocked by the fact that the acquaintance, whowas a mere civilian, had intervened in state affairs and pursued her personalgains using the relationship with the President. As public opinion demandingher resignation heightened, President Park Geun-hye announced three statementsof apology to the people, but did not voluntarily resign from the presidency. Themotion for impeachment was passed on December 9, 2016, with 234 NationalAssembly members voting in favor.
During ConstitutionalCourt hearings, candlelight demonstrations were held all over the country,demanding a quick impeachment decision against the President, while the scaleof protests against the impeachment of the President also increased. Thus, nearthe end of the impeachment proceedings, the Korean society’s conflict over theimpeachment reached its peak.
The ConstitutionalCourt rendered a decision that removed President Park Geun-hye from office byupholding the petition for impeachment adjudication with the consensus of alleight Justices, which was broadcasted live nationwide at 11:21 a.m., March 10,2017.
B. Summary of the Two Decisions
In the impeachment caseagainst President Roh Moo-hyun, the President insisted that the petition for impeachmentadjudication was illegitimate because the proceedings at the National Assemblylacked sufficient investigation and deliberation; the opening time of theplenary session of the National Assembly had been arbitrarily changed; theinquiry and discussion process had been omitted in adopting the motion forimpeachment adjudication; the vote had not been taken on each of the groundsfor impeachment; and the principle of due process had been violated for notgiving the respondent an opportunity to submit his opinion during theimpeachment phase.
In the impeachment caseagainst President Park Geun-hye, the President insisted, in addition to theabove arguments, that the petition for impeachment adjudication and the trialprocess were illegitimate because the grounds for impeachment were notspecifically stated in the impeachment resolution and the decision by eightJustices would constitute a violation of the right to a fair trial by the fullbench of nine Justices.
Regarding the above cases,however, the Constitutional Court rejected all of the arguments and judged thecases on their merits, assuming that the petitions for impeachment adjudicationand the trial process were legitimate.
[Reasonsfor Rejecting the Petition for the Impeachment of President Roh Moo-hyun]
In the impeachment caseagainst President Roh Moo-hyun, the Constitutional Court rejected the petitionfor impeachment adjudication. The Court’s reasoning is summarized as follows.
The President violatedthe duty of public officials to maintain political impartiality in elections andthe duty to protect the Constitution by making statements at a press conferencein support of a particular political party with the election close at hand, bydenigrating the election law as the “vestige of the era of elections affectedby government interference” and publicly questioning the legitimacy of the lawthough he had been warned by the National Election Commission against theviolation of election law, and by proposing a confidence referendum notpermitted under the Constitution.
However, “where arequest for an impeachment is well-grounded” in Article 53 Section 1 of theConstitutional Court Act does not mean any and all violations of theConstitution or Acts, but means a grave violation of law enough to justify theremoval of a public official from office. Further, a “grave violation of lawenough to justify the removal of the President from office” means suchcircumstances where the maintenance of the presidential office can no longer bepermitted from the standpoint of the protection of the Constitution or wherethe President has lost the qualifications to administrate state affairs bybetraying the people’s trust. Thus, the President’s violation of law recognizedin this case is insufficient to justify his impeachment.
[Reasonsfor Upholding the Petition for the Impeachment of President Park Geun-hye]
In the impeachment caseagainst President Park Geun-hye, the Constitutional Court upheld the petitionfor impeachment adjudication and removed President Park Geun-hye from heroffice. The Court’s reasoning is summarized as follows.
The Constitutionclarifies the duty of public officials to serve public interest by providingthat public officials shall be “servants of the entire people,” and the duty isfurther specified in the State Public Officials Act and the Public ServiceEthics Act. The respondent, however, violated the above duty by abusing herposition and authority as President for the benefits of the specific acquaintance.The respondent infringed upon the property rights and freedom of management ofcompanies by abusing her authority as President to help the specific acquaintanceseek her own interests, and violated the duty of confidentiality under the StatePublic Officials Act by allowing numerous documents kept classified to beleaked under the orders and tacit approval of the respondent.
The respondent’s actsof violating the Constitution and law are a betrayal of the people’s confidence,and are grave violations of the law unpardonable from the perspective ofprotecting the Constitution. Since the negative impact and influence on theconstitutional order brought about by the respondent’s acts are serious, thebenefits of protecting the Constitution obtained by the removal of therespondent from office overwhelmingly outweigh the loss that would be incurredby the removal of the respondent from office.
Meanwhile, Justice KimYi-Su and Justice Lee Jin-Sung set forth their concurring opinion, as follows.
Although the respondentdid not violate the duty to protect the right to life in relation to the Sewolferry disaster, her conduct was against the duty to faithfully execute dutiesunder the Constitution and the duty of fidelity under the State PublicOfficials Act. This reason alone is not enough to constitute the grounds forremoval of the President from office, but it is worth pointing out that therespondent violated the duty to faithfully execute duties in order to preventfuture Presidents from having a wrong perception that they may execute theirduties unfaithfully in the face of a national crisis.
Justice Ahn Chang-Hoadded his concurring opinion, as follows.
This impeachment caseis not a matter of conservative or progressive ideologies, but of safeguardingthe constitutional order. Thus, the petition for impeachment adjudication mustbe upheld, to put an end to political corruption.
C. Significance of the Decisions and Aftermath of theCases
The two impeachment cases above were the only ones in Korea’sconstitutional history in which the motions for impeachment adjudicationwere passed in the National Assembly and the Constitutional Court made a finaldecision thereon.
President Park Geun-hyewas removed from the presidency without fulfilling her remaining term due tothe ruling that upheld the motion for impeachment adjudication.
Subsequent to the aboveruling, the 19th Presidential Election was held on May 9, 2017, and candidate MoonJae-in was elected President. The Constitutional Court partially amended itsRules of Adjudication on May 30, 2017, to make the relevant provisions moreconcrete and practical to overcome the problems and flaws that emerged in theprocess of the impeachment trial.