SNS Statement on Controversy Over Interpretation of Article 84 of the Constitution
Explains Criminal Procedure Law's Prosecution Concept, Clarifies No Criminal Trial Possible Before Inauguration for Incumbent President
Cho Kuk: "Lee Jae-myung's Election Only Reinforces Frame That Trial Is Impossible Within 3 Years"
Jo Guk, leader of the Jo Guk Innovation Party, criticized former People Power Party emergency committee member Han Dong-hoon’s constitutional interpretation on the 20th that even the president’s criminal trial does not get suspended, calling it "either deliberately misinterpreted or ignorant." He argued that if one becomes president, ongoing criminal trials before inauguration cannot proceed because prosecution cannot be carried out. Jo referred to Han as "Mr. Han Dong-hoon" and criticized him, saying, "It has been confirmed that he has not properly studied criminal procedure law, which can be considered his major."
On the same day, Jo pointed out the issue of interpreting Article 84 of the Constitution through social media (SNS). Regarding the so-called ‘presidential immunity from prosecution,’ which states that except for crimes of rebellion and treason, the president cannot be criminally prosecuted during their term, Professor Jo, a former criminal law professor, expressed his stance.
Earlier, former committee member Han raised the question on SNS about whether a criminal trial is suspended if a defendant becomes president. Regarding this, he explained, "I believe that an ongoing criminal trial does not get suspended just because the defendant becomes president," adding, "The Constitution separately stipulates impeachment prosecution and impeachment trials, and the Supreme Court also distinguishes between criminal prosecution and criminal litigation terminologically, so the ‘prosecution’ mentioned in Article 84 of the Constitution is understood to mean only the initiation of a lawsuit." This controversy arose in the context of explaining that even if Lee Jae-myung, leader of the Democratic Party of Korea, who faces four criminal trials, is elected president, he may have to step down depending on the trial outcomes.
Regarding this issue, opinions have been divided among constitutional scholars and the legal community. Views ranged from the argument that even the president should be tried to the opinion that criminal trials against a sitting president are impossible.
In this regard, Jo said, "I tried to refrain from engaging in legal interpretation just to show off as a law scholar, but I cannot remain silent on this issue," and criticized, "In conclusion, Mr. Han Dong-hoon’s constitutional interpretation is nonsense. He either deliberately misinterpreted Article 84 of the Constitution or is ignorant."
He stated, "Article 246 of the Criminal Procedure Act defines ‘state prosecution principle’ and defines ‘prosecution’ as both ‘filing of charges’ and ‘conducting prosecution.’ For the president, both ‘filing of charges’ and ‘conducting prosecution’ are prohibited during the term. Since ‘conducting prosecution’ is prohibited, the ‘trial’ cannot proceed. It is very obvious that a trial cannot proceed without a prosecutor." Jo added, "This interpretation has been taught in law school or law classes," emphasizing, "This has nothing to do with whether the president is progressive or conservative. According to Mr. Han’s interpretation, if the prosecution files charges just before the presidential election, the elected president must continue to face trials during the term, which grants enormous power to the prosecution." He argued that this is unacceptable not only legally but also from the perspective of state power.
He pointed out, "It has been confirmed that Mr. Han Dong-hoon has not properly studied not only the Constitution but also criminal procedure law, which can be considered his major." Furthermore, he said that Han’s raising of this issue only strengthens the frame that Lee’s trials related to him will not end within the next three years after his election, thus "inadvertently helping Lee."
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