Impeachment of the Supreme Court Chief Justice is possible only with the seats of the ruling party... Suspension until judgment
The severity of violations of the Constitution and laws is the criterion... Judgment from the perspective of protecting the Constitution
(Seoul = Yonhap News) Reporter Lee Bae-eum and Mi-ryeong Lee = As the Democratic Party of Korea formalizes discussions on pursuing the impeachment of Supreme Court Chief Justice Cho Hee-dae, attention is also focused on the criteria and procedures by which the Constitutional Court determines whether to dismiss a public official.
According to the political world on the 18th, Kim Min-seok, leader of the Democratic Party, appeared on a YouTube broadcast on the 16th and said, "We have started discussing all methods and all paths" regarding the impeachment of Chief Justice Cho.
The ruling party believes that Chief Justice Cho violated the president's right to appoint a Supreme Court justice and the people's right to a trial in the process of unilaterally recommending a Supreme Court justice candidate and later rejecting requests for re-nomination.
The Supreme Court's plenary ruling in May last year to remand President Lee Jae-myung's Public Official Election Act and the suspicions of illegal handling of business expenses raised in a recent government audit are also cited as reasons for impeachment within the party.
In fact, if the ruling party moves to impeach Chief Justice Cho, more than one-third of the members of the National Assembly must propose an impeachment bill and a majority of the members must agree.
Unlike the impeachment of a president, which requires the motion of a majority of the registered members and the approval of more than two-thirds, the Chief Justice of the Supreme Court can be impeached only by the seats of the ruling party.
If the impeachment bill passes the plenary session of the National Assembly, Chief Justice Cho will be suspended from exercising his authority until the impeachment trial.
The impeachment process begins when the Chairman of the Legislation and Judiciary Committee of the National Assembly submits a resolution for impeachment to the Constitutional Court in his capacity as a member of the impeachment committee.
Once the Constitutional Court receives the impeachment resolution, it designates a presiding judge and begins the impeachment trial.
The impeachment trial is handled by a plenary court in which all nine judges participate.
The full court exchanges opinions on the case and discusses the trial schedule in a closed session.
The criminal procedure law applies to the impeachment trial procedure.
The argument date will be open to the public and will be held through oral arguments.
The parties and prosecutors will be summoned on the pleading date, but if the parties do not appear more than twice, the hearing may be held without attendance.
The Constitutional Court must issue a decision to approve or dismiss the impeachment within 180 days from the date of receipt of the impeachment trial.
If more than 6 out of 9 judges determine that the request for an impeachment trial is justified, the person is dismissed from public office, and if grounds for impeachment are not recognized, a decision is made to dismiss it.
The standard by which the Constitutional Court determines whether to remove a person from office is 'the respondent's violation of the Constitution and laws and the gravity of that violation.'
The impact of the violation on the constitutional order and the benefits of protecting the Constitution gained through dismissal are considered.
In the 2004 impeachment trial of former President Roh Moo-hyun, the Constitutional Court first presented the standard that in order to uphold the National Assembly's impeachment prosecution, 'there must be a serious violation of the Constitution and laws to justify removal from office.'
The Constitutional Court said that former President Roh Moo-hyun's remarks in support of the Uri Party at a press conference were a violation of the obligation of political neutrality under the Public Official Election Act, but dismissed the impeachment prosecution, saying, "An active intention to go against the constitutional order cannot be recognized and cannot be evaluated as a threat to the basic order of liberal democracy."
On the other hand, in the impeachment trials of former President Park Geun-hye in 2017 and former President Yoon Seok-yeol last year, the decision was made to remove them from office after acknowledging serious violations of the Constitution and laws, such as supporting Choi Soon-sil's pursuit of private interests and martial law.
Former Police Commissioner Jo Ji-ho was dismissed after it was recognized that the control of access to the National Assembly and the deployment of police to the National Election Commission (NEC) during the martial law period were serious violations of representative democracy and separation of powers.
On the other hand, in the impeachment trials against former Minister of the Interior and Safety Lee Sang-min, former Korea Communications Commission Chairman Lee Jin-sook, and former Board of Audit and Inspection Chairman Choi Jae-hae, the petitions for impeachment trials were dismissed as the violation of the law or the severity was not recognized.
In the impeachment of a judge, it has been suggested as a factor in determining the reliability of the independence and fairness of the trial.
The 2021 impeachment trial of former Chief Judge Lim Seong-geun was dismissed on the grounds that he could not be dismissed because his term ended midway.
However, the three judges who gave the quoted opinion pointed out that "damaging trust in the independence and fairness of the trial is a serious violation of the law if the degree is so significant that it can cause serious obstacles to judicial functions."
Constitutional experts pointed out that if an actual impeachment prosecution is carried out, it is necessary to distinguish between the unconstitutionality and illegality of the reasons raised against Chief Justice Cho and the gravity that justifies his removal from office.
Changhyun Lee, a professor at Hankuk University of Foreign Studies Law School, dismissed the possibility of citing impeachment, saying, "It is difficult to find violations of the Constitution and laws," not only in relation to the Supreme Court Justice's refusal to recommit, but also to the decision to quash and remand President Lee Jae-myung's case.
Kim Dae-hwan, a professor at the Law School of the University of Seoul, also assessed that it is difficult to view the rejection of a re-submission, the remand decision, and the controversy over business expenses as violations of the law.
He added, "In particular, when impeaching a judge, a serious violation must be recognized that violates trust in the independence of the judiciary," adding that dismissal cannot be made solely for violation of the law.
There is also a view that even if there is a violation of the Constitution and laws, it is difficult to say that it meets the requirements of ‘materiality’.
Lim Ji-bong, a professor at Sogang University Law School, said, "There are unconstitutional and illegal acts that infringe on the people's right to a speedy trial due to the vacancy of the Supreme Court Justice," but added, "Based on the information known so far, the Constitutional Court has judged that it is not an unconstitutional or illegal act serious enough to dismiss the Chief Justice of the Supreme Court, whose term of office is guaranteed, so there is a high probability that it will be dismissed."
On the other hand, Kim Seon-taek, professor emeritus at Korea University Law School, said, “The Chief Justice of the Supreme Court’s declaration that he would reject the re-recommendation is clearly a violation of the Constitution due to omission of the recommendation,” and assessed that it could be recognized as a serious violation.
If an impeachment prosecution is actually carried out, some voices are concerned about the impact that the first impeachment of the Supreme Court Chief Justice in constitutional history will have on the independence of the judiciary and the disruption of the trial due to the suspension of his duties.
Professor Kim Dae-hwan said, “There is a high possibility that the impeachment prosecution itself will be perceived as an attack on the independence of the judiciary,” and expressed concern, “Will judges be able to properly and independently trial political cases with conscience?”
Professor Lee Chang-hyeon expressed concern that major trials may be postponed during the suspension period, saying, “If it is not urgent, would you proceed with the full merger process without the Chief Justice of the Supreme Court?”
However, considering the political situation, there are also observations that the possibility of the Democratic Party actually moving forward with impeachment is low.
