The system of impeachment as a means of removal from office has existed since the First Constitution. However, the nature of the system changed significantly in 1960, when the Constitution of the Second Republic recognized the legal effect of the suspension of the accused official's authority in the impeachment charge itself. This allowed the majority party with the majority of seats to exercise a de facto control over the cabinet, while the government had no adequate means to check the abuse of the impeachment power, even if it was abused, resulting in a breakdown of the balance between parliament and the executive. The system that allows for the suspension of authority by impeachment indictment alone is very rare in comparative law and has not been adopted by major countries such as the United States, the United Kingdom, Germany, France, and Japan, which have influenced our Constitution. On the other hand, there is no record in the records of the National Assembly at that time that explains why the suspension of powers was granted for impeachment indictment. It can only be speculated that the groundbreaking provision of suspension of powers was introduced out of a vague sense of damage to the abuse of power in the First Republic, without in-depth consideration of the impeachment system, which could only be seen as a codified system at the time. This system, however, has made the chaos surrounding impeachment a predetermined part of the political process. After decades of being a codified system that went unnoticed, its implications as a political weapon have been fully understood and considered, and today it has emerged as the most effective weapon of political struggle, a culprit of chaos that can paralyze the government into a state of inaction, and has been criticized as a de facto instrument of political retribution. With 30 motions for impeachment in the past three years, the country has witnessed these concerns become a reality. The current system is also legally problematic. Unlike the system of “suspension from duty” under the Civil Service Act, neither procedural nor adversarial defenses are currently recognized for the suspension of authority due to impeachment indictment. Even among the few countries that grant suspension of powers to impeachment proceedings, it is difficult to find a country that does not take into account the procedural rights of the accused like Korea. Furthermore, it is indeed deplorable that the system has remained an imperfect system introduced in the 1960s, despite the fact that the constitutional value system was reorganized after the introduction of the system, including the incorporation of the principle of presumption of innocence into the constitutional provisions in 1980. Since the impeachment indictment was issued in 2004, various scholars have raised concerns about the impeachment indictment system, but no improvements have been made. It is urgent that this system be reformed. Most fundamentally, the system should be abolished through a constitutional amendment, or the suspension of powers should be subject to the judgment of the Constitutional Court. However, if a constitutional amendment is not feasible, the Constitutional Court Act and the National Assembly Act should be amended to ensure that impeachment proceedings are carefully judicial in nature and recognize the accused's right to procedural defenses. Furthermore, in order to ensure the accused's right to trial, I believe that, even in the absence of explicit statutory provisions, the Constitutional Court should introduce a provisional relief system for the suspension of authority through legal interpretation rather than relying on legislative action. Of course, it would be even more desirable if a legislative amendment explicitly stipulating this in the Constitutional Court Act were to be enacted in the future.
Yoo Hwan Kim (Wed,) studied this question.