Library of Congress

Law Library of Congress

The Library of Congress > Law Library > News & Events > Global Legal Monitor

South Korea: Scandal Raises Questions About the Future of the President

(Nov. 23, 2016) On November 20, 2016, South Korean prosecutors indicted Choi Soon-sil, a close friend of President Park Geun-hye, on charges of abuse of power, coercion, attempted coercion, and attempted fraud. The prosecutors also announced that Park is subject to investigation in the case as a co-conspirator. (Myo-ja Ser, Prosecutors Announce President Park Is Now a Suspect in a Criminal Investigation, JOONG ANG DAILY (Nov. 21, 2016).) The National Assembly passed legislation to appoint special prosecutors to investigate the case, the Cabinet approved it, and President Park signed it on November 22, 2016.  (Cabinet Approves Independent Counsel Bill on Choi Scandal, YONHAP NEWS (Nov. 22, 2016).)

Background

On November 12, 2016, one million people gathered in central Seoul and demanded President Park resignation over the scandal involving her friend Choi. (Ha-young Choi & Bo-eun Kim, One Million Protesters Storm Seoul’s Streets, Demanding Park’s Resignation, KOREA TIMES (Nov. 15, 2016).) A week later, there was another mass protest. (Youngsters Join Mass Protests as Elderly Park Fans Vent Spleen, CHOSUNILBO (Nov. 21, 2016).)

Choi is accused of abusing her close ties with Park to interfere in security and economic policies despite holding no official position or security clearance. (Rachel Lee, Choi Scandal Threatens Security, Diplomacy, KOREA TIMES (Nov. 7, 2016).) In addition, Choi allegedly leveraged her relationship with Park to coerce big businesses into donating large sums to two dubious nonprofit foundations that she was suspected of using for personal gain. (Kyongae Choi, Prosecutors Vow to Question President Park Early This Week, YONHAP NEWS (Nov. 13, 2016).)

Legal Situation

Under Korean law, the President cannot be charged with a criminal offense during her tenure of office, except for the crimes of insurrection or treason. (Constitution of the Republic of Korea (Oct. 29, 1987), art. 84, STATUTES OF THE REPUBLIC OF KOREA.) Based on this presidential immunity, Park is refusing to be interviewed by the prosecutors. (Prosecutors in Deepening Standoff with Cheong Wa Dae, CHOSUNILBO (Nov. 22, 2016).) Evidence gathered by the prosecutors will be handed over to an independent counsel. (Id.)

The special prosecutor system is based on the Act on Appointment of Special Prosecutor. (Act on the Appointment, etc., of Special Prosecutor, Act No. 12423 (Mar. 18, 2014), National Law Information Center website (click on title to see English translation).) Two special prosecutors will be appointed by the National Assembly, and one will be appointed by the President. (Id. art. 3.) The special prosecutors will have 20 days as a preparation period and 60 days to conduct the investigation. The investigation period can be extended by 30 days, with permission from the President. (Id. art. 10.)

A plan to hold a parliamentary investigation separate from the independent prosecutors’ probe was also approved on the same day. (Myo-ja Ser, Assembly Votes for Independent Counsel Probe, JOONG ANG DAILY (Nov. 18, 2016).)

Park’s Presidency in Crisis

Park’s presidency is in crisis because her own ruling party, opposition parties, and the public have tried to oust her. (Myo-Ja Ser, Park’s Plight Gets Worse, More Talk of Impeachment, JOONG ANG DAILY (Nov. 8, 2016).) Her approval rating has been 5%. (Young-lim Hong, Park’s Approval Rating Stuck in Doldrums, CHOSUNILBO (Nov. 21, 2016).) A number of different approaches to a resolution of the crisis have been suggested:

Scenario A: Let a Prime Minister Do the Job

At first, Park tried to keep her position by proposing that a prime minister handle domestic affairs. Park told the National Assembly speaker that she would accept a recommendation for a prime minister from the National Assembly and respect a prime minister’s handling of domestic affairs. (Woo-sang Jeong, Park to Let Lawmakers Choose Next PM, CHOSUNILBO (Nov. 9, 2016).) Under the Constitution, the Prime Minister is appointed by the President with the consent of the National Assembly. (Constitution, art. 86, ¶ 1.) The Prime Minister assists the President and directs the executive ministries under the order of the President. (Id. art. 86, ¶ 2.) The Prime Minister also recommends the appointment and removal of State Council members. (Id. art. 87, ¶¶ 1 & 3.) Under this plan, Park would engage only in national security and diplomatic matters. However, the opposition parties did not agree to this solution.

Scenario A bis: Let a Prime Minister Handle the Transition

Some opposition legislators proposed a three-phase plan: the President resigns; then an acting prime minister would be selected by the National Assembly; and lastly the new prime minister would decide on the schedule for the next presidential election, before the full term ends. (Opposition Renews Calls for Park to Resign, CHOSUNILBO (Nov. 17, 2016).) Park has refused this proposal. (Appointment of Prime Minister to Start Over: Korean President’s Office “Would Wait to See the Circumstances Clearly,” CHOSUNILBO (Nov. 21, 2016) (in Japanese).)

Scenario B: Park’s Resignation

In refusing the above proposal, Park stated that it is unconstitutional for the prime minister to decide the term of the president, because the Constitution guarantees a five-year presidency. (Korean President’s Office: Negative Attitude for Method of Resignation of President Park Discussed Among Parties, CHOSUNILBO (Nov. 15, 2016) (in Japanese).) The Constitution does state that the term of office of the President is five years. (Constitution, art. 70.) Park could resign voluntarily, however. In such a case, a successor would be elected within 60 days from the beginning of the vacancy. (Id. art. 68, ¶ 2.) When there is no president in office, the Prime Minister acts for the President. (Id. art. 71)  However, Park apparently has no intention of resigning. (Nok-yong Jung, Park Refuses to Resign, CHOSUNILBO (Nov. 16, 2016).)

Scenario C: Impeachment

Opposition parties are considering impeaching Park. (Myo-ja Ser, Opposition Prepares to Impeach, JOONG ANG DAILY (Nov. 22, 2016).) If a president has violated the Constitution or other acts in the performance of official duties, the National Assembly may pass a motion for impeachment.  (Constitution, art. 65, ¶ 1.) A motion for the impeachment of a president must be proposed by a majority of the total members of the National Assembly and approved by two-thirds or more of that total. (Id. art. 65, ¶ 2.) When a motion for impeachment has been passed, the person to be impeached is suspended from exercising his or her powers until the impeachment has been adjudicated. (Id. art. 65, ¶ 3.)