[Choi Seok-jin's Legal Story] The First Judge Impeachment: What Will Happen in the Im Sung-geun Impeachment Trial?

Former Busan High Court Chief Judge Lim Seong-geun attended the first hearing of his impeachment trial case on the afternoon of the 10th of last month at the Constitutional Court in Jaedong, Jongno-gu, sitting in the respondent's seat and waiting for the trial to begin.

In Choi Seok-jin's Legal Stories, we aim to cover various issues revolving around the legal community, focusing on courts and prosecutors. We plan to write somewhat freely on topics such as the legal points or prospects of major cases, the background behind incidents, and untold stories that cannot be included in news articles, without being bound by specific themes or formats. Today’s second story concerns the impeachment trial request case of former Busan High Court Chief Judge Im Seong-geun, which is currently under review by the Constitutional Court.

[Asia Economy, Legal Affairs Specialist Reporter Choi Seok-jin] The impeachment trial request case against former Busan High Court Chief Judge Im Seong-geun, who was the first judge in constitutional history to be impeached, has reached its turning point.

The Constitutional Court, which held the second hearing on the 6th, will hold the final hearing on July 10 and then proceed with a full review to reach a final conclusion.

At the last hearing on August 10, the petitioner (prosecutor) side plans to explain how each piece of evidence connects to the charges through a presentation (PPT), and the respondent (former Chief Judge Im Seong-geun) side will present rebuttals.

The petitioner side requested about three hours due to the volume of evidence submitted, but the bench asked them to summarize the explanation within about one hour. The bench also rejected the examination of several witnesses requested by the petitioner side and the examination of former Chief Judge Im himself.

Established Facts... ‘Intervention in Trials by Orders and Coercion’ vs. ‘Customary Advice and Recommendations’; The Key is Legal Evaluation

Unlike other trials or constitutional complaints, this case does not involve a sharp dispute between the petitioner and respondent over the facts.

This is because most of the facts have already been revealed through the prosecution’s investigation and court proceedings. This is why the Constitutional Court judged that it did not need to separately conduct witness or reference examinations.

According to the summary of charges by the National Assembly, former Chief Judge Im is accused of improperly intervening in three trials during his tenure as the Senior Criminal Judge at Seoul Central District Court under former Chief Justice Yang Seung-tae from 2015 to 2016: ▲a defamation case involving Kato Tatsuya, former Seoul bureau chief of Sankei Shimbun, related to reports on former President Park Geun-hye’s whereabouts on the day of the Sewol ferry disaster; ▲a case involving lawyers from the Lawyers for a Democratic Society (Minbyun) charged with assault during the Ssangyong Motor protests; and ▲a case involving professional baseball players Oh Seung-hwan and Lim Chang-yong accused of gambling.

In the Kato Tatsuya case, former Chief Judge Im requested the presiding judge of the trial to make interim judgments or to revise the oral version of the verdict. In the baseball players’ case, he summoned the judge who had referred the case to a formal trial from a summary order and recommended consulting other judges, which eventually led to reversing the decision. In the Minbyun lawyers’ assault case, he caused the modification of the already delivered verdict, 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 his impeachment.

These charges were relatively detailed during the criminal trial for abuse of authority by former Chief Judge Im. For those curious about the specific facts, a separate summary of when and what acts led to his impeachment is provided at the end of the article.

Neither the petitioner nor the respondent disputes the above facts confirmed through the first trial in court. The difference lies in the legal evaluation of these acts. The petitioner argues that former Chief Judge Im’s acts constitute unconstitutional and illegal interference in trials, violating judicial independence, while the respondent claims they were merely ‘advice’ or ‘recommendations’ as a senior judge.

Why Did the Court Acquit on the Abuse of Authority Charge?

Before the impeachment, former Chief Judge Im was prosecuted in March 2019 on charges of abuse of authority and obstruction of rights and tried in court. Nearly a year after the trial began, in February 2020, the 25th Criminal Division of Seoul Central District Court (presided by Judge Song In-kwon) acquitted him.

Article 123 of the Criminal Act (Abuse of Authority) stipulates that “If a public official abuses their authority to compel a person to perform an act not obligated or to obstruct the exercise of a person’s rights, they shall be punished by imprisonment of up to five years, suspension of qualifications for up to ten years, or a fine of up to 10 million won.”

The court’s reasons for judging that former Chief Judge Im’s acts did not constitute abuse of authority under criminal law were twofold.

First, for abuse of authority to be established, the act in question must be within the defendant’s general official authority, but former Chief Judge Im, as Senior Criminal Judge, did not have such authority in the first place. Simply put, abuse implies misuse of authority, but if there was no authority to begin with, abuse cannot be established.

This reasoning was also why several defendants involved in the political scandal or judicial scandal cases could not be held liable for abuse of authority.

The court stated, “Judicial administrative authority is a means to concretize and realize the judicial system guaranteed by the Constitution and must be exercised to protect judicial independence guaranteed by the Constitution. The judicial administrative authority to communicate with the trial court about ongoing cases to listen to difficulties and provide reference materials to support proper and prompt trials, or the authority to request cooperation from judges for external affairs, cannot be permitted due to the limits of judicial administration,” rejecting the prosecutor’s claims.

In other words, since the heads of the Judicial Administration Office who first issued instructions, such as the Planning and Coordination Officer, Deputy Chief, or Court President, did not have authority to influence the progress or outcome of specific trials, the Senior Criminal Judge also did not have such general official authority.

The second reason was that there was no causal relationship between former Chief Judge Im’s acts and the measures taken by each presiding judge.

For all intentional crimes to be established, there must be a causal link between the act and the resulting outcome. In this case, it means “because former Chief Judge Im made such requests, the presiding judge acted accordingly.” The court denied this, judging that the presiding judges made decisions after consulting with the chief and associate judges, breaking the causal chain.

For these reasons, the court acquitted former Chief Judge Im of abuse of authority.

However, in the reasoning, the court noted that former Chief Judge Im’s acts constituted illegal acts using his position as Senior Criminal Judge and could be grounds for disciplinary action.

Furthermore, the court stated that former Chief Judge Im’s requests for interim judgments or revisions of oral verdicts in the Kato Tatsuya case were “unconstitutional acts interfering with judicial independence by inducing the content or procedure of ongoing trials.” Regarding the request to revise sentencing reasons in the Minbyun lawyers’ assault case, the court said it was “an unconstitutional and illegal act interfering with judicial independence by inducing the content or outcome of ongoing trials and requesting modification of an unchangeable original verdict.” For reversing the decision to refer the baseball players’ gambling case to a formal trial, the court said it “may constitute an act of interfering with the ongoing trial procedure.”

Ultimately, while the court could not legally recognize abuse of authority, it clearly pointed out that the acts included in the indictment were unconstitutional acts interfering with judicial independence. This judgment became a trigger for the ruling party to push for impeachment.

Procedural and Substantive Issues in the Impeachment Trial

This case involves various procedural and substantive issues. Most of these issues have surfaced during the preparatory hearing on March 24 and the two hearings on June 10 and 6.

Procedural issues include ▲whether the National Assembly’s impeachment procedure was proper ▲whether criminal trials or disciplinary actions on the same grounds violate the constitutional principle of ne bis in idem ▲and whether dismissal is possible for a public official who has already retired.

Substantive issues include ▲whether former Chief Judge Im’s acts included in the charges can be considered illegal or unconstitutional ▲and whether, even if illegal, they constitute a ‘serious legal violation’ warranting impeachment.

The respondent argues that the National Assembly skipped procedural steps such as prior investigation, questioning, and debate required by the National Assembly Act when deciding impeachment, thus there is a procedural defect.

However, the petitioner counters that facts were sufficiently confirmed through prosecution investigations, trials, and media reports, so no further investigation was necessary, which seems persuasive.

The respondent also claims that since former Chief Judge Im was acquitted of abuse of authority in the criminal trial and received a disciplinary reprimand for the baseball players’ case on the same grounds, the impeachment request violates the ne bis in idem principle.

However, since criminal liability, disciplinary actions, and constitutional impeachment are fundamentally different, the Constitutional Court is unlikely to dismiss the impeachment request on these grounds.

The most critical procedural issue is whether dismissal is possible for a public official who has already retired.

Regarding this, the Constitutional Court Act Article 50 (Suspension of Authority) states that “a person against whom impeachment is decided shall suspend the exercise of authority until the Constitutional Court’s judgment.” Article 51 (Suspension of Trial Procedure) states that “if a criminal trial is ongoing for the same grounds as the impeachment, the court may suspend the trial.”

However, there is no direct provision for cases where the impeached person’s term has expired and they have left office, and since there has been no precedent, the Constitutional Court must interpret the Constitution and the Act to reach a conclusion.

Meanwhile, Article 53 (Content of Decision) Paragraph 1 states that “if the impeachment request is justified, the Constitutional Court shall order dismissal from the public office.” Paragraph 2 states that “if the person has been dismissed before the decision, the Court shall dismiss the impeachment request.”

In other words, the impeachment system was introduced to remove high-ranking officials such as the president, prosecutor general, and judges, who have strong job security, from office through dismissal when they violate the Constitution or laws.

Former Chief Judge Im did not apply for reappointment before his term expired and retired on February 28. Thus, when the National Assembly decided impeachment and filed the request with the Constitutional Court, he was still a judge, but during the Court’s review, he ceased to be a judge.

Simply put, if the Constitutional Court finds that former Chief Judge Im violated the Constitution or laws and accepts the impeachment request, it must order “dismissal of the respondent (Im Seong-geun) from the judgeship,” but since he is no longer a judge, there is debate over whether such an order can be issued.

At the first hearing on June 10, both sides fiercely debated this point.

The respondent argued that since the impeachment system aims to dismiss problematic public officials, and former Chief Judge Im has already left office, the Court should dismiss the case for lack of trial interest.

The petitioner cited past Constitutional Court rulings stating that the impeachment system’s function is not only to dismiss problematic officials but also to warn and prevent constitutional violations by stipulating the possibility of impeachment. They argued that this case should serve as a chance to uphold judicial independence rather than merely punishing one judge’s wrongdoing.

If the Court dismisses the case because former Chief Judge Im retired, it would block impeachment of officials nearing term expiration who commit illegal acts, and allow officials to avoid impeachment by resigning, which the petitioner warns against.

However, the issue lies in the form of the order. The petitioner proposed two forms at the second hearing.

First, to set the dismissal date as the last day the respondent was in office, i.e., the term expiration date. The order would read, “Dismiss the respondent from the judgeship as of February 28, 2021.”

Second, to issue the dismissal order on the judgment date but retroactively apply its effect to the term expiration date or the date of impeachment decision. The order would read, “Dismiss the respondent from the judgeship. The effect of this decision is retroactive to February 28, 2021.”

The petitioner argues this is a way to uphold constitutional order through impeachment despite the respondent’s resignation, citing various modified rulings in constitutional review, declarations of public authority’s basic rights violations even without subjective rights protection interest, and flexible interpretations of effective dates of Constitutional Court decisions.

The respondent counters that since the Constitutional Court Act does not provide for suspension of term by impeachment decision, the term of a fixed-term public official cannot be stopped, and trial interest must exist until the Court’s decision, so dismissal is impossible for a retired official.

The petitioner’s claim that the legal gap should be resolved legislatively by the National Assembly, and that the Court’s retroactive dismissal would violate separation of powers and legislative authority, is also noted.

On the substantive side, it seems unlikely the Court will accept the respondent’s claim that the acts were customary advice or recommendations from senior judges. Although judges who received requests testified that they did not perceive them as orders or coercion and that the trials were unaffected, such testimony lacks objectivity.

Although prosecutors and judges are both independent agencies, there is a big difference. While the Prosecutors’ Office Act no longer includes the ‘principle of prosecutor unity’ requiring obedience to superiors’ orders, Article 7 Paragraph 1 still states that prosecutors are subject to supervision and direction by superiors, and Article 7-2 allows superiors to delegate duties among prosecutors.

This enables unified investigation standards nationwide, allowing superior prosecutors to direct subordinates.

However, judges are different. Article 103 of the Constitution states that “Judges shall be independent in their adjudication according to the Constitution and laws and their conscience,” meaning no senior judge can interfere in a junior judge’s trial in any form.

Therefore, the Constitutional Court is likely to judge former Chief Judge Im’s acts as unconstitutional or illegal interference with judicial independence. If it rules otherwise, it would imply such interference is constitutionally permitted, which is hard to accept.

However, even if the Court finds the acts illegal, it does not necessarily have to order dismissal.

In the 2004 impeachment trial of the late former President Roh Moo-hyun, the Court acknowledged violations of election laws but dismissed the case, ruling that the violations were not serious enough to warrant dismissal.

The Court stated that interpreting the law literally to require dismissal in all violations would violate the principle of proportional constitutional punishment, and that “justified impeachment” means serious violations justifying dismissal, not all violations.

Thus, even if the Court finds former Chief Judge Im’s acts violate the Court Organization Act or Criminal Procedure Act, whether they constitute serious violations warranting dismissal is a separate issue.

Possible Outcomes... ‘Simple Dismissal’ vs. ‘Dismissal + Unconstitutionality Confirmation’ vs. ‘Acceptance + Dismissal’

At this point, three main possible conclusions by the Constitutional Court can be anticipated.

First, the Court may dismiss the case because former Chief Judge Im is no longer a judge due to term expiration.

This is the most literal interpretation of the Constitutional Court Act and requires no detailed reasoning on violations or seriousness, making it the easiest choice for the Court.

However, this would expose the Court to criticism for neglecting judicial independence and constitutional order, making it a difficult choice.

Second, as the petitioner argues, the Court may accept the impeachment request, ruling that the acts violate the Constitution and laws and constitute serious violations justifying dismissal, and issue a dismissal order retroactive to the term expiration date.

This would warn against recurrence of similar trial interference, affirm the Court’s duty to uphold constitutional order, but also risk criticism for overstepping by resolving a legislative gap.

Third, since dismissal is impossible, the Court may dismiss the case but clearly state in the reasoning that the acts violated the Constitution and laws, or even that they constitute serious violations warranting dismissal, and urge the National Assembly to amend the Constitutional Court Act to suspend terms of impeached officials.

This compromise avoids criticism of neglecting constitutional order or violating separation of powers.

The Constitutional Court is often called a ‘political judicial body’ because, unlike courts that strictly interpret laws, it considers political factors when interpreting the Constitution or assessing public authority’s infringement of basic rights.

Among the nine justices, eight including Chief Justice Yoon Nam-seok were appointed by President Moon Jae-in. The presiding justices for this case, Lee Seok-tae and Lee Eun-ae, were nominated by Chief Justice Kim Myung-soo and appointed by President Moon.

The justices are known to lean progressive. Notably, presiding Justice Lee Seok-tae served as president of the progressive lawyers’ group Lawyers for a Democratic Society (Minbyun) from 2004 to 2006 and co-representative of the progressive civic group People’s Solidarity for Participatory Democracy from 2011 to 2014. Both groups have advocated for impeachment of judges involved in judicial scandals.

Personally, this case seems one where the Court could issue a passive dismissal based on existing law or an active dismissal based on legal interpretation.

The verdict will depend on how each of the nine justices evaluates former Chief Judge Im’s acts and the role they see for the Court. A dismissal order requires at least six justices’ approval.

Earlier this year, Chief Justice Kim Myung-soo denied allegations that he refused to accept former Chief Judge Im’s resignation due to the National Assembly’s impeachment push, but was caught in a lie when Im released a recorded interview, causing embarrassment.

It is likely that Chief Justice Kim hopes the Court will issue a dismissal order against former Chief Judge Im.

What Acts of Former Chief Judge Im Seong-geun Were Problematic?

First, regarding the Kato Tatsuya case, in 2015, former Planning and Coordination Officer Lim Jong-heon of the Judicial Administration Office requested former Chief Judge Im to “clarify the falsity of articles about former President Park’s seven-hour whereabouts on the day of the Sewol ferry disaster before the verdict if it is confirmed false during evidence investigation,” known as a request for an ‘interim judgment.’

The Yang Seung-tae Supreme Court classified this case as a major issue. While it was important due to defamation against the president, special attention was paid because the judiciary needed to appease the Blue House to realize the long-standing goal of establishing a high court.

After receiving this request, Judge Lee, the presiding judge, stated in court a few days later that “based on evidence and testimonies, it is confirmed that Jung Yoon-hoe did not meet the president on the day of the Sewol disaster, and the rumors written by Kato Tatsuya are proven false beyond reasonable doubt.”

He also asked Kato’s defense counsel to focus arguments on ‘public interest’ and ‘lack of intent to defame,’ effectively directing the trial to focus on these points, which is an exercise of trial supervision authority.

This amounted to pre-judging the falsity of the article before the final verdict, which is unusual in normal trials.

Lim Jong-heon also met a daily newspaper reporter to explain the trial situation and requested prominent coverage.

Moreover, former Chief Judge Im, following Lim’s instructions, caused the revision of the verdict’s reasoning. After receiving the oral version of the verdict from the presiding judge, he directly modified it and sent it by email.

Originally, the presiding judge drafted the verdict stating that Kato’s actions did not constitute defamation because “the president, as the highest public figure, should not be lightly found guilty of defamation.” After the revision, it changed to “although it constitutes defamation, there is no proof of intent to defame, so acquittal is warranted.”

Additionally, a request from Woo Byung-woo, then Blue House Civil Affairs Secretary, that the Foreign Ministry submit a petition for leniency for Kato to maintain Korea-Japan diplomatic relations was conveyed to the court and realized. On the verdict day, the presiding judge even reprimanded Kato’s behavior in court.

Second, in the Minbyun lawyers’ assault case, four lawyers were charged with attempted assault after pulling a police officer during a protest in front of Deoksugung Daehanmun in 2013.

Former Chief Judge Im is accused of modifying the sentencing reasons after the verdict was delivered. The verdict was announced at 3 p.m. on August 20, 2015, but after 4 p.m., former Chief Judge Im reviewed the verdict and ordered the public relations judge to withhold distribution of the verdict and press release, suggesting to tone down controversial expressions.

This request was conveyed to the presiding judge, who canceled the original verdict registration at 3:50 p.m. and registered the revised verdict at 5:54 p.m. the same day.

The deleted sentencing reasons included expressions such as “the defendants (Minbyun lawyers) showed anger and aggression toward the victim in the video,” “the victim’s (police) duty was lawful,” and “special leniency is granted this time instead of imprisonment.”

Lastly, in the professional baseball players’ case, although summary orders were requested for gambling charges, the judge decided to proceed with a formal trial, but former Chief Judge Im reversed this decision.

The prosecution charged players Lim Chang-yong and Oh Seung-hwan with baccarat gambling at a Macau hotel casino in late November 2014 and requested fines of 7 million won each in December 2015. Judge Kim, the presiding judge, decided a formal trial was necessary and instructed staff accordingly.

However, on January 14, 2016, former Chief Judge Im summoned Judge Kim and asked if he had consulted other judges, suggesting it might be better to hear more opinions, implying that a formal trial was unnecessary.

Judge Kim reversed his decision that afternoon and issued summary fines of 10 million won, the maximum penalty for gambling.

Former Chief Judge Im also asked Judge Kim to respond that the registration of the formal trial was a clerical error by the staff, and Judge Kim conveyed this to the staff.