Im Seong-geun Former Chief Judge Impeachment Trial... Key Issues the Constitutional Court Must Decide (Part 1)

[Asia Economy Reporter Choi Seok-jin] As the Constitutional Court, which is hearing the impeachment trial case against former Busan High Court Chief Judge Im Seong-geun, is drawing attention to the final decision it will make, this case contains various constitutional issues such as impeachment trials and judicial independence, making the court's decision likely to become an important precedent.

In particular, although impeachment trials for two former presidents, the late Roh Moo-hyun and Park Geun-hye, have been heard by the Constitutional Court in the past, this is the first impeachment trial case involving a judge, specifically former Chief Judge Im. In the past, impeachment proposals were submitted to the National Assembly against Supreme Court Chief Justice Yoo Tae-heung in 1985 and Supreme Court Justice Shin Young-chul in 2009, but these were either rejected in the National Assembly vote or failed to proceed to final hearings due to exceeding the statutory processing deadline under the National Assembly Act.

Article 48 (Impeachment Proposals) of the Constitutional Court Act (hereinafter referred to as the Constitutional Court Act) states, "If a public official who falls under any of the following subparagraphs violates the Constitution or laws in the execution of their duties, the National Assembly may resolve to propose impeachment in accordance with the Constitution and the National Assembly Act."

It then enumerates the impeachment targets from subparagraphs 1 to 4, including the president, prime minister, Constitutional Court justices, and judges.

Article 53 (Contents of Decision) Paragraph 1 of the Constitutional Court Act states, "If the impeachment trial petition is found to be justified, the Constitutional Court shall issue a decision to dismiss the respondent from the relevant public office." Paragraph 2 of the same article stipulates, "If the respondent has been dismissed from the relevant public office before the decision is rendered, the Constitutional Court shall dismiss the trial petition."

Ultimately, for the Constitutional Court to accept the impeachment trial petition, it must determine whether there is a recognized violation of the Constitution or laws in the execution of duties and whether the impeachment trial petition is justified. In previous impeachment trial cases involving two former presidents, the Constitutional Court clarified that "the phrase 'when the impeachment trial petition is justified' in Article 53 Paragraph 1 of the Constitutional Court Act does not apply to all legal violations but only to 'serious' legal violations that justify dismissal of the public official."

According to the summary of the National Assembly's impeachment proposal, former Chief Judge Im is accused of improperly intervening in three trials during his tenure as Senior Criminal Division Chief Judge at the Seoul Central District Court from 2015 to 2016: ▲ the defamation case involving former Sankei Shimbun Seoul bureau chief Kato Tatsuya related to reports on former President Park Geun-hye's whereabouts on the day of the Sewol ferry disaster, ▲ the gambling charges against baseball players Oh Seung-hwan and Lim Chang-yong, and ▲ the arrest and injury charges against Minbyun lawyers during the Ssangyong Motor protests.

In the Kato Tatsuya case, he requested the presiding judge of the trial panel to make interim judgments or revise the oral judgment transcript. In the baseball players' case, he summoned the judge who referred the case, which had a summary order requested, to a formal trial procedure and advised hearing opinions from surrounding judges, ultimately causing the decision to be reversed. In the Minbyun lawyers' arrest and injury case, he caused the already delivered judgment to be revised, thereby infringing on the constitutional independence of the judiciary and the independence of trials, and violating the Court Organization Act and the Criminal Procedure Act. These are the grounds for the impeachment proposal against former Chief Judge Im.

Procedural Defects in the National Assembly's Impeachment Proposal and the Issue of Non bis in idem

In the case of constitutional complaints, which are remedies for violations of fundamental rights by public authority, a designated panel of three Constitutional Court justices first reviews the admissibility requirements of the constitutional complaint petition before substantive judgment.

That is, if any of the requirements such as directness of the fundamental rights violation, self-relatedness, or subsidiarity (lack of other remedies) are not met, the petition is dismissed without being referred to trial.

However, in impeachment trials, there is no such preliminary review system by a designated panel regarding admissibility requirements, and the judgment is made together with the substantive judgment.

Meanwhile, in constitutional complaint cases, even if there is no subjective interest in protecting rights, the court has exceptionally proceeded to substantive judgment without dismissal if objective interest in protecting rights is recognized from the perspective of maintaining the overall constitutional order. For example, if a petitioner files a constitutional complaint claiming that a law limiting the number of attempts at the judicial examination directly infringes on the freedom of occupation and other fundamental rights but passes the judicial examination before the Constitutional Court's decision, the law's infringement on fundamental rights becomes meaningless for that individual, but the court may still issue a final decision for the benefit of other examinees.

The respondent (former Chief Judge Im) argues that there were procedural problems in the National Assembly's impeachment proposal process. Specifically, they claim that the National Assembly bypassed procedures under the National Assembly Act such as prior investigation, questioning, and debate on the grounds for impeachment and pushed through the impeachment proposal against the respondent with a majority of seats, resulting in procedural defects. However, the petitioner side counters that the facts were sufficiently confirmed through the prosecution's investigation, trial process, and media reports on the same matter, and evidence was secured, so no further investigation was necessary, which is a persuasive argument.

The grounds for impeachment against former Chief Judge Im have already been subject to criminal trials in court, where he was acquitted of abuse of authority charges in the first trial. In particular, regarding the baseball players' case, former Chief Judge Im even received a disciplinary action of 'reprimand' for the exact same grounds.

Therefore, the respondent side argues that the National Assembly's impeachment petition violates the constitutional principle of 'non bis in idem' (no double jeopardy). On the other hand, the petitioner side maintains that abuse of authority under criminal law and constitutional violations are different. They emphasize that the acquittal in the first criminal trial was a strict application of the principle of legality in criminal procedure, but the court acknowledged the unconstitutional acts of former Chief Judge Im. They also argue that since various disciplinary measures such as dismissal and removal exist under the State Public Officials Act with different meanings and legal effects, the argument that impeachment cannot be petitioned due to the court's reprimand does not hold.

Form of Order if Impeachment Trial Petition is Accepted... Is 'Dismissal' Possible for Retired Judges?

From a procedural perspective, the most contentious issue is that the effect of accepting the impeachment trial petition is 'dismissal,' which cannot be applied because former Chief Judge Im is no longer a judge.

Former Chief Judge Im retired on February 28 after not applying for reappointment before his term expired. That is, he was a judge when the National Assembly resolved the impeachment proposal and petitioned the Constitutional Court, but during the court's hearing, he ceased to be a judge.

As seen above, if the Constitutional Court finds the impeachment trial petition justified under the Constitutional Court Act, it issues a decision dismissing the respondent from the relevant public office. The order takes the form of "dismiss the respondent from the judicial office."

However, since former Chief Judge Im will not be a judge at the time the Constitutional Court concludes the hearing and issues a ruling, there is inevitably controversy over whether the order can be issued in this form.

At the first hearing held on the 10th, both sides engaged in intense debate over this point.

The respondent side argues that since the impeachment trial system aims to dismiss problematic public officials and former Chief Judge Im has already left public office, the Constitutional Court should issue a 'dismissal' decision. In contrast, the petitioner side cites the Constitutional Court's precedent that the function of the impeachment trial system goes beyond merely dismissing problematic public officials; it also serves to warn and prevent constitutional violations by stipulating the possibility of impeachment if the Constitution or laws are violated. They argue that this case should not be limited to judging the wrongdoing of one judge but should be an opportunity to uphold the principle of judicial independence.

Although former Chief Judge Im resigned, the petitioner side insists that the unconstitutional or illegal acts committed during his tenure as a judge should be clearly pointed out to uphold the Constitution and protect judicial independence. Substantively, there are significant differences between judges who retire upon term expiration and former judges dismissed by the Constitutional Court in aspects such as pension payments.

If the Constitutional Court finds that former Chief Judge Im's acts violate the Constitution or laws, the issue lies in the form of the order.

Article 50 (Suspension of Exercise of Authority) of the Constitutional Court Act states, "A person against whom an impeachment proposal has been resolved shall be suspended from exercising their authority until the Constitutional Court's judgment," and Article 51 (Suspension of Trial Procedure) states, "If a criminal trial is underway for the same grounds as the impeachment trial petition against the respondent, the trial panel may suspend the trial procedure."

However, there is no relevant provision in the Constitutional Court Act regarding cases where the respondent's term has expired and they have left public office.

Since there is no precedent yet, the Constitutional Court must consider whether it is possible to issue a retroactive dismissal decision before retirement or to issue a decision after retirement that considers the respondent dismissed.

Attorney Song Doo-hwan, representing the petitioner, stated at the hearing on the 10th that he would submit opinions later regarding the form of the order that the Constitutional Court may issue if it accepts the impeachment trial petition against former Chief Judge Im.

If the Constitutional Court interprets the Constitutional Court Act as making dismissal decisions impossible for public officials who have already retired, it may issue a 'dismissal' decision on the impeachment trial petition while explicitly pointing out the unconstitutionality and illegality of former Chief Judge Im's judicial intervention acts in the reasoning section.

If the Constitutional Court finds that former Chief Judge Im's acts do not violate the Constitution or laws, or that only minor violations occurred which are insufficient to justify dismissal, it may issue a 'dismissal' decision rather than a 'rejection' decision.