Korean Law Demystified!

Presidential Impeachment Process in South Korea: The Gist

What it is: You could say it is how a sitting President is “fired.”

Below is the two-step process by which an incumbent President (in Korea) can be removed from office via impeachment:

STEP 1: At least 151 lawmakers (out of 300) launch a motion (to impeach), and then at least 200 (out of 300) vote “yea.”

STEP 2: At least 6 Constitutional Court (of Korea) Justices vote to remove the President. (FYI, there are 9 Justices.)

You could say both the legislative and judicial branches of government are involved in the impeachment/removal process.

Then, what is the legal basis for impeaching a President?

A: Article 65 of the Korean Constitution.

Article 65

(1) In case the President, the Prime Minister, members of the State Council, heads of Executive Ministries, Justices of the Constitutional Court, judges, members of the National Election Commission, the Chairman and members of the Board of Audit and Inspection, and other public officials designated by Act have violated the Constitution or other Acts (i.e., laws) in the performance of official duties, the National Assembly may pass motions for their impeachment.

(2) A motion for impeachment prescribed in paragraph (1) may be proposed by one third or more of the total members of the National Assembly, and shall require a concurrent vote of a majority of the total members of the National Assembly for passage: Provided, That a motion for the impeachment of the President shall be proposed by a majority of the total members of the National Assembly and approved by two thirds or more of the total members of the National Assembly.

(3) Any person against whom a motion for impeachment has been passed shall be suspended from exercising his power until the impeachment has been adjudicated.

(4) A decision on impeachment shall not extend further than removal from public office: Provided, That it shall not exempt the person impeached from civil or criminal liability.

– Translation by KLRI (Korea Legislation Research Institute)

As you can see, the grounds for impeaching a President is, if he/she has violated the Constitution or any laws in the performance of official duties. The question is, any violation?

The law does not say. Whenever the law is vague/coy, it is up to the court to further specify. And that’s exactly what they did back in 2004 when then-President Roh Moo-hyun was impeached. (The first time ever a President was impeached in South Korea!)

The Impeachment of President Roh Moo-hyun (in 2004): Case No. 2004헌나1

In March 2004, a motion to impeach President Roh was passed by the National Assembly. The main charges against him were:

1) That he violated general election laws by publicly expressing his support for the then-ruling party + he subsequently criticized the Korean National Election Commission’s decision to view his comments as unlawful. And his attempts for a plebiscite (i.e., vote of confidence);

2) That people close to him had become embroiled in corruption;

3) That he had caused the economy to collapse.

* In Korea, the President and all public officials/employees have a duty to “stay neutral” during elections. They’re forbidden from influencing elections via publicly endorsing any specific party!

On May 14, 2004, the Constitutional Court ruled not to remove Roh from office. They saw charges #2 and #3 as irrelevant. With regard to charge #1, the Court did see those actions as Roh violating his duty (as President) to uphold the Constitution/laws. It’s just that they weren’t “grave” enough to warrant removal.

So the standard is whether the violation (of the Constitution or law) is a “grave” violation. What exactly is a “grave” violation (that warrants removal)? The Court kindly gave 5 examples: 1) Corruption such as bribery/embezzlement (by the President); 2) An action which clearly harms national interest; 3) Infringing upon the authority of another government agency under the Constitution; 4) Oppressing the people through the use of government organizations; 5) Rigging elections through the use of government organizations. (These translations are my own.)

What’s more interesting about this case was the Court’s internal decision not to publish what the votes were. (They normally do, but the procedural law did not say definitively with regard to impeachment cases specifically.) The Justices did not all see eye to eye, so they had to take a vote on this as well! (It is widely known that 3 out of the 9 Justices voted in favor of removal, and 2 out of those 3 wanted their dissenting opinions published in full. It seems those 3 saw the corruption charge as relevant.)

DID YOU KNOW? It was reported that one dissenting Justice in particular was so furious about his being denied the right to draft/record his opinion that he begrudgingly signed the ruling after it was read/rendered live on TV. FYI, the Court ruling+reasoning (308 pages) was drafted by one Justice alone: Justice Joo Sun-hoi. He summarized the dissenting opinions in 2 pages. I remember I was waiting for my turn at a dental clinic while the ruling was being read on TV. It was around 10 a.m.

The question is whether President Park can realistically be removed from office. The problem is that 2 Justices’ terms end soon (in Jan and Mar) in which case 7 would all have to preside over the case + 6 out of those 7 would have to approve removal. (FYI, the Constitutional Court is to decide in 180 days.)

At the top: “impeach” as defined by www.thefreedictionary.com (my favorite).

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