Lee Jae-myung's 'Judicial Risk' and 'Presidential Election Candidacy' Relationship? [Impeachment Q&A]

Two Trials in First Instance, One Guilty and One Not Guilty Verdict
Democratic Party Likely to Pressure Constitutional Court for 'Early Ruling'

On the 14th, the National Assembly passed the impeachment motion against President Yoon Seok-yeol, resulting in the suspension of his duties. Depending on the Constitutional Court's impeachment trial outcome, an early presidential election phase is inevitable. If the Constitutional Court upholds the impeachment, will Lee Jae-myung, leader of the Democratic Party of Korea, who currently ranks first in suitability polls for the next presidential candidate, face any issues running for president? He is currently undergoing five trials and has already received a guilty verdict resulting in loss of parliamentary seat in one first-instance trial and a not guilty verdict in another.

Lee Jae-myung, leader of the Democratic Party of Korea, is leaving the Seoul Central District Court in Seocho-gu, Seoul, after the first trial sentencing hearing for the charge of 'suborning perjury' held on the 25th of last month. On that day, the first trial court acquitted Lee, who was indicted on charges of suborning perjury. Photo by Joint Press Corps

The issue lies in when the Constitutional Court (ConCourt) will deliver its verdict and when the final court ruling on Lee’s trials will be made. Depending on which is announced first, Lee’s fate could be significantly affected. In the case of the ConCourt, the impeachment trial of former President Roh Moo-hyun was concluded in 63 days, while that of former President Park Geun-hye took 91 days.

If the ConCourt reaches a conclusion similar to former President Roh’s case, it could be favorable for Lee. A decision around February to March would immediately lead into the presidential election phase. For the cases where first-instance rulings have already been made?violations of the Public Official Election Act and perjury inducement?the appellate court rulings have yet to be issued. According to the court’s so-called 6(1st instance)-3(appellate)-3(final) principle, the appellate rulings are expected around February. In this scenario, the final Supreme Court ruling would come after the presidential election framework is already established.

If the ConCourt takes about 90 days as it did during former President Park’s impeachment, the situation becomes more complicated. A decision would come around March to April. By then, it is likely that the appellate court ruling on Lee’s cases would have been issued. The presidential election phase and the final trial phase could coincide, potentially leading to intense clashes. A later ConCourt ruling than during former President Park’s case is something Lee would least want to imagine.

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In other words, it is in Lee’s interest for the ConCourt to quickly conclude the impeachment trial. The longer it is delayed, the greater the burden of 'judicial risk.' Therefore, it is expected that opposition parties will intensify pressure on the ConCourt.

Then, if Lee runs for president and wins, what will happen to the trials he is facing? The issue becomes complex. According to the Constitution of South Korea, the president has immunity from criminal prosecution except for crimes of rebellion or treason (Article 84 of the Constitution). This system is designed to prevent presidential authority over diplomacy, national defense, and governance from being hindered by criminal procedures. However, constitutional scholars differ on whether ongoing trials at the time of presidential election victory should be suspended. Some argue that "while the president is not subject to indictment through investigation, investigations can still be conducted." Others hold the view that "during the period of holding the presidential status, criminal jurisdiction should, in principle, not apply."