If Daegu Mayor Kwon Young-jin's Demand Had Been Accepted, Impeachment Controversy Could Have Spread... Constitutional Court Precedents: "Emergency Orders Also Subject to Review," "Emergency Order Requirements Must Be Strictly Interpreted"
[Asia Economy Reporter Ryu Jeong-min] The controversy over Daegu Mayor Kwon Young-jin's demand for the president's 'emergency decree authority' was resolved as a misunderstanding due to insufficient legal review. However, if it had actually been pursued, it could have sparked impeachment proceedings against the president.
According to the Constitutional Court on the 5th, an important ruling was made regarding whether the emergency financial real-name system decree issued by then-President Kim Young-sam on February 29, 1996, was subject to constitutional review. In the case (93HunMa186), the Constitutional Court defined the emergency financial economic decree under Article 76 of the Constitution as a presidential 'act of governance,' but emphasized that the limits of means concerning the realization of citizens' fundamental rights must be observed.
In particular, the Constitutional Court judged that "even if it is a state action carried out by a highly political decision, if it is directly related to the infringement of citizens' fundamental rights, it naturally becomes subject to judicial review."
This means that if the exercise of the emergency decree (emergency economic decree) authority granted to the president leads to infringement of citizens' fundamental rights, it becomes subject to judicial review. At the time, lawyer Park Sang-hoon, who filed a request for unconstitutionality confirmation, argued that "the National Assembly should impeach the president who committed unconstitutional acts."
The Constitutional Court ruled, "Since the emergency financial economic decree has the effect of law, it must be bound by the Constitution," and rejected the Minister of Justice's claim that "because the emergency decree is an act of governance, it cannot be subject to constitutional review."
Furthermore, the Constitutional Court emphasized, "The emergency financial economic decree is an extraordinary measure recognized by the Constitution to prepare for a serious crisis situation that cannot be dealt with by the usual exercise of power under the constitutional order. Therefore, it constitutes a serious infringement of the principles of parliamentarism and separation of powers, and its requirements must be interpreted strictly."
The Constitutional Court judged that the emergency financial real-name system decree at the time was "issued within the limits of the Constitution according to the procedures and requirements prescribed by the Constitution," and did not accept lawyer Park's claim. However, it is noteworthy that the Constitutional Court emphasized the strictness of emergency decrees and emergency financial economic decrees.
Recently, Mayor Kwon's demand for an emergency decree to secure hospital beds related to the novel coronavirus infection (COVID-19) and calls from inside and outside the political circle for extraordinary measures through an emergency financial economic decree could have led to impeachment controversy depending on how the situation developed.
Article 76, Paragraph 1 (Emergency Financial Economic Decree) of the Constitution stipulates that a decree may be issued "when there is no time to wait for the National Assembly to convene," and Paragraph 2 (Emergency Decree) states that a decree may be issued "when the National Assembly cannot convene."
Lawyer Oh Young-jung explained, "The National Assembly was in session in February, so if the president had issued an emergency decree (in response to political demands), it could have led to calls for impeachment."
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