12/18/2007

Impeachment Standard in Korea

Impeachment Standard in Korea
Appeared in the Korea Times on Decemebr 13, 2007

Dear Sean: A liberal party has initiated impeachment articles against three prosecutors. I remember reading an article about how impeachment occurs in Korea, but I can seem to find it. How can a government official, like a prosecutor, be impeached in Korea? Allen in Itaewon.

Dear Allen: The question brings to light the unique way that impeachment is handled in Korea. In Korea, as in many countries, impeachment begins by a vote in the legislature; however, Korea is unique in that the Constitutional Court is given power over removal.

Article 65 states that if "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 the Act have violated the Constitution or other Acts in the performance of official duties, the National Assembly may pass motions for their impeachment."

The motion of impeachment must be proposed by at least one third of the total members of the National Assembly and requires a concurrent vote of at least a majority of the total members of the National Assembly for passage. In contrast, to remove the president at least a majority of the total members of the National Assembly must propose and at least two thirds of the total members must vote for the motion.

After passage of the motion six votes at the Constitutional Court are needed to remove the officer from his office.

The most interesting issue is the standard employed by the Court. Article 53 (1) of the Constitutional Court Act provides that ``when there is a valid ground for the petition for impeachment adjudication, the Constitutional Court shall issue a decision removing the respondent from office.''

The court, in the impeachment of President Roh, refused to interpret the clause literally and thus proclaimed that ``minor violations'' cannot result in impeachment, since minor violation leading to removal may lead to an offense to ``the request that punishment under the Constitution proportionally correspond to the obligation owed by respondent, that is, the principal of proportionality.''

Thus, the court noted that government officials, subject to impeachment adjudication could only be removed for ``grave violations.'' The court noted that ``grave violations'' will be interpreted by the court by ``balancing the degree of negative impact on or the harm to the constitutional order caused by the violation of the law and the effect to be caused by the removal of the respondent from office.''

The impeachment motion will not be passed, but if it is, because of the standard and more importantly the total lack of evidence the court will not remove the prosecutors.

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SeanHayes@ipglegal.com