[Hotterview] "'Yoon's Detention' Possible... If Detained, Must Move Beyond Acting Authority System"

Interview with Professor Lim Jibong of Sogang University Law School
Presidential detention corresponds to Article 71 'accident' of the Constitution
Current charges constitute grounds for detention

The political situation is rapidly changing due to the sudden declaration and lifting of martial law. While there is no disagreement within the political sphere regarding President Yoon Seok-yeol's early resignation, there are differing views on the solution. Amid this, the possibility of a criminal investigation leading to President Yoon's detention is being discussed by investigative agencies. What would happen to the government if a sitting president were detained? Professor Lim Ji-bong of Sogang University Law School, former president of the Korean Constitutional Law Association, expressed the opinion that President Yoon's current situation constitutes grounds for detention and that the government should transition to a qualified acting authority following proper legal procedures.

President Yoon Suk-yeol declared martial law on the night of the 3rd, and in the early morning of the 4th, martial law troops are attempting to enter the main building of the National Assembly. Photo by Kim Hyun-min

Article 71 of the Constitution states, "When the President is unable to perform duties due to vacancy or accident, the Prime Minister, or in the order prescribed by law, a State Council member shall act on behalf of the President." What does this mean?

The President is the highest authority in national affairs and security, so the position cannot remain vacant. Hence, the provision for an acting authority exists. A vacancy refers to a situation where the President cannot return to office, while an accident refers to a situation where the President may still return. If the President is dismissed by the Constitutional Court's impeachment ruling, they cannot return to office. An accident occurs when the National Assembly passes an impeachment motion, suspending the President's authority, but the President may return, as was the case with former President Roh Moo-hyun. When the President goes on an overseas trip, the Prime Minister acts on their behalf. The same applies if the President's health is poor.

Can President Yoon be detained?

A sitting President enjoys immunity from criminal prosecution, but Article 84 of the Constitution provides exceptions. The Constitution grants immunity because investigations and court proceedings would interfere with the President's duties. However, this immunity does not apply in cases of rebellion or treason. These are serious crimes that threaten the state's existence and can lead to prosecution. In such cases, President Yoon is equal before the law like any other citizen. According to reports, if President Yoon checked the movement of martial law troops and ordered arrests related to martial law, he would be considered the ringleader of rebellion. Then detention and emergency arrest would be possible.

Why is that?

The criteria for issuing an arrest warrant are the seriousness of the case and concerns about flight risk or evidence tampering. Rebellion is inherently a serious matter. Even though the sitting President is unlikely to flee, the risk of evidence tampering is high. President Yoon has denied issuing arrest orders and made contradictory statements. News reports indicate that President Yoon has been registered as a suspect in rebellion. Therefore, an arrest warrant can be issued just like for any ordinary citizen.

Does the President's detention correspond to an accident under Article 71 of the Constitution? In other words, can the government transition to an acting authority system?

According to the definition of an accident, if President Yoon is detained and unable to perform his duties, it qualifies as an accident. In this case, the authority is transferred to the acting official in the order prescribed by law among State Council members. However, State Council members who participated in the Cabinet meeting before the martial law announcement should not become acting authorities. Even if they claim to have opposed it at the Cabinet meeting, this must be verified through investigation.