Korean Impeachment Standard & Procedure: The Law of Impeachment in South Korea

The following article was published in the Korea Times on December 13, 2007 – we believe because of the present Impeachment issues in Korea, it is worth a repost to The Korean Law Blog. The Korean law and procedure on impeachment remains the same.

Sean Hayes, the only non-Korean national lawyer to work for the Constitutional Court of Korea as a government officer wrote the article. He worked on the impeachment of President Roh case while he worked for the Constitutional Court of Korea. Sean Hayes, also, taught Constitutional Law, International Law, and Comparative Law in Korea and for a university in the United States. Sean Hayes works with IPG Legal for their Seoul, Korea Office.

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 not 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 the sole 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 of Korea and requires a concurrent vote of at least a majority of the total members of the Korean National Assembly for passage. In contrast, to remove the Korean 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 to impeach by the Korean National Assembly, six votes at the Constitutional Court are needed to remove the officer from 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 violations 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 can 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.

Sean Hayes is the first non-Korean attorney to have worked for the Korean court system (Constitutional Court of Korea) and one of the first non-Koreans to be a regular member of a Korean law faculty. Sean is ranked, for Korea, as one of only a few non-Korean lawyers as a Top Attorney by AsiaLaw, and IPG Legal is consistently ranked Top Dispute Resolution Law Firm for our litigation services and IPG Legal is consistently rated a top-tier law firm in corporate law, litigation, franchise law, estate law, family law, employment & labor law, and criminal defense law.

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