ScholarWorks@숙명여자대학교

초록

The subject judgment represents the first impeachment trial of the Prime Minister, who is also the Acting President, in the Korean constitutional history. It serves as a valuable case study for examining the concept of ‘acting authority’ as defined under the Administrative Organization Law. The subject judgment addresses significant issues about the legal status of the Acting President, the scope and limits of the Acting President’s authority, and the unconstitutionality of the inaction on the appointment of Constitutional Court Justices. The acting president, as delineated in Article 71 of the Constitution of the Republic of Korea, corresponds to ‘legal representation’ under the Administrative Organization Law. However, it is important to note that the status of the Acting President lacks democratic legitimacy and therefore cannot be considered equivalent to that of the President. In this regard, it is imperative that the subject judgment explicitly states that the acting president is exercising the role of the Prime Minister. However, a new discussion is needed on whether it is appropriate to have the Acting President be the Prime Minister in the event of an impeachment situation against the President. To overcome the national crisis triggered by the unconstitutional declaration of martial law by the President, it is necessary to consider the temporary assumption of the powers of the President by the Speaker of the National Assembly, as a neutral body. The timing of the start of the exercise of the powers of the Acting President is also unclear. It is reasonable to assume that the exercise of presidential powers is suspended from the moment the impeachment of the President is adopted, and the Korean National Assembly Act and the Korean Constitutional Court Act should be amended accordingly. The scope of the Acting President’s duties is controversial. In principle, the acting president should be limited to the performing duties that maintain the status quo. In exceptional cases, such as a major security crisis or an economic or financial crisis, when the president’s powers must necessarily be exercised, cooperation with the National Assembly is necessary. However, it is difficult to rule out the possibility of this power being abused, so it is necessary to review measures to establish a legal basis. The unconstitutionality of the inaction to appoint a Justice of the Constitutional Court in the subject judgment is questionable. The Acting President should not exercise the power to appoint the three Justices of the Constitutional Court appointed by the President. This power belongs to the President. However, in the case of a candidate Justices to the Constitutional Court nominated by the Chief Justice of the Supreme Court or elected by the National Assembly, the Acting President should appoint the candidate, unless there is a clear reason for disqualification. Therefore, inaction to appoint a candidate for a Constitutional Court despite decision of the Constitutional Court is a serious illegal act. The dysfunction of the Constitutional Court due to the retirement of a Constitutional Court Justice is an important constitutional issue. In order to solve this problem, the law should be revised to allow a retiring Constitutional Court Justice to temporarily perform his/her duties until a successor is elected, as in the case in Germany.

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