노무현대통령탄핵심판사건에서 헌법재판소의 주요논지에 대한 비판적 검토

What does the Korean Constitutional Court Miss or Misunderstand in the Impeachment Trial against President Roh Moo-hyun?

On March 12, 2004, the 16th National Assembly impeached President for the first time in Korean modem constitutional history alleging that President Noh Moo-hyun violated the Constitution and acts of the National Assembly on three categories: breach of the legal order, involvement in political corruption and failure of economic policies. On May 14, 2004, the Constitutional Court rejected the impeachment holding that although it can find President Noh's violation of the Constitution and relevant laws on three points, the severity of illegality is not enough to remove him from the office. The author agrees with the final conclusion of the Constitutional Court but do not agree with the specific findings and arguments deployed by the Court. Firstly, the Court is wrong in holding that President Noh's remarks in press conferences before general election scheduled on April 15, 2004 violated Art. 9 of the Election Law providing that public servants and others who are requested by law to be politically neutral should not give any unjustifiable influence on election campaigns. The Court sees President as a public servant who are designated to serve for the whole nation so that should not involve in election campaigns. However, it misses the genuine constitutional status of President. Being a representative of the people, President may and/or should be political to implement the principle of popular sovereignty. More specifically, since he should mobilize legislature's support to execute what the nation wishes by electing him President, he may ask voters to support candidates sided with his political stance. This does not mean that President can abuse his administrative power to win general election. What is at stake in impeachment trial against President Noh, however, is speeches in press conferences rather than abuse of administrative power. Secondly, the Court went too far to hold that President Noh violated constitutional duty of protecting the Constitution by defying the National Election Commission's warning that President's expression of political party preference could be considered as a breach of election law. It is not clear that he tried to defy the Commission's warning. Furthermore, the Court's opinion misunderstand the scope of President's power. President can express his own opinion about any law or decision of other public bodies because he is the head of the State and Government whose main duty is to interpret the Constitution and implement constitutional ideals. Thirdly, the Court makes errors in judging that President's proposal of plebiscite construed to be unconstitutional is a violation of constitutional duty of protecting the Constitution. As the Court itself ruled in a constitutional petition case, putting any political proposal before legislature or the public per se cannot be regarded as execution of public power. President, being the head of Government, can make any plan or proposal which have never been authoritatively ruled as unconstitutional. Finally, it is also wrong to hold that lack of full investigation or debate on the impeachment proceedings or failure of separate resolution on concrete causes rather than one resolution on comprehensive causes is not violation of due process of law. Since impeachment trial is a sort of trial leading to the removal of presidency, each cause of action should be considered separately by the National Assembly.