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South Korea: President May Be Impeached

(Dec. 2, 2016) An impeachment motion against South Korean President Park Geun-hye has now been delayed and it is not certain whether it will be brought against her in, and passed by, the National Assembly. (Yoon-seung Kang, Impeachment Motion Delayed as Oppositions Fail to Narrow Gap, YONHAP NEWS (Dec. 1, 2016); for background on the controversy that may lead to impeachment, see Sayuri Umeda, South Korea: Scandal Raises Questions About the Future of the President, GLOBAL LEGAL MONITOR (Nov. 23, 2016).)

If a motion is passed, the prosecuting commissioner, the Chairperson of the Legislation and Judiciary Committee of the National Assembly, through the presentation of an authentic copy of the impeachment resolution, will request that the Constitutional Court adjudicate on the impeachment. (Constitutional Court Act, Act No. 4017, Aug. 5, 1988, amended by Act No. 12897, Dec. 30, 2014, art. 49, STATUTES OF THE REPUBLIC OF KOREA.) Once a motion of impeachment is passed, the president cannot exercise power as the president until the Constitutional Court adjudicates the case. (Id. art. 50 & Constitution of the Republic of Korea, Oct. 29, 1987, art. 65 ¶ 3, STATUTES OF THE REPUBLIC OF KOREA.)

The Constitutional Court will examine whether Park has violated the Constitution or other Acts in the performance of official duties. (Constitutional Court Act, art. 65 & Constitution of the Republic of Korea, art. 48.) The Constitutional Court must pronounce the final decision within 180 days after it receives any case for adjudication, including impeachment cases. (Constitutional Court Act, art. 38.)

In cases in which criminal procedures are under way on the same grounds as those used for a request for impeachment against the respondent, the full bench of nine Justices may suspend the proceedings of adjudication of the impeachment case. (Id. art. 51.) In Park’s case, special prosecutors were appointed to investigate the matter. (South Korea’s Park Names Prosecutor to Probe Corruption Scandal, REUTERS (Nov. 30, 2016); Umeda, supra.) Therefore, the provision on suspension may be applicable.

Where a request for an impeachment is well-founded, the Constitutional Court must pronounce a decision to remove the respondent from the public office. (Constitutional Court Act, art. 53 ¶ 1.) The concurrence of six or more Justices is required for impeachment. (Id. art. 23 ¶ 2, item 1; Constitution of the Republic of Korea, art. 113.) A decision of impeachment does not exempt the respondent from civil or criminal liability. A person who is removed by decision of impeachment cannot be a public official again unless five years have passed since the decision was pronounced. (Constitutional Court Act, art. 54.) If the respondent has already left office before the pronouncement of the decision, the case is dismissed.  (Id. art. 53 ¶ 2.) Therefore, if Park resigns, the impeachment procedure will be terminated.

After the president is removed from office by impeachment, a successor must be elected within 60 days. (Constitution of the Republic of Korea, art. 68 ¶ 2.)

There is a precedent for impeachment of a president in Korea. In March 2004, the National Assembly passed a motion to impeach then-president Roh Moo-hyun. Two months later, the Constitutional Court dismissed the impeachment. (Youngjae Lee, Law, Politics, and Impeachment: The Impeachment of Roh Moo-hyun from a Comparative Constitutional Perspective, 53:2 AM. J. COMP. L. 403 (Spring 2005).)