Imiseon·Kim Hyeongdu vs Kim Bokhyeong·Jo Hanchang... Divided Over 'Prosecutor's Evasion Statement Evidence Validity' [Yoon Seokyeol Dismissal]

Justices Lee Miseon and Kim Hyeongdu:
"Adoption of Investigative Statements as Evidence Is Permissible;
Prolonged Witness Examination May Suspend Proceedings"
vs
Justices Kim Bokhyeong and Jo Hanchang:
"Due to Nationwide Impact, Hearsay Rule Should Be Strictly Applied"

Among the eight Constitutional Court justices, four issued supplementary opinions split 2:2 on whether the statements made by witnesses who appeared before the Constitutional Court and testified to investigative agencies such as the prosecution can be used as evidence in impeachment trials. A minority opinion refers to a dissenting opinion opposing the court's opinion (majority opinion), a supplementary opinion that agrees with the conclusion but adds reasons, and a separate opinion that agrees with the conclusion but differs in reasoning. All the minority opinions issued this time were supplementary opinions.

From the left, Im Iseon, Kim Hyeongdu, Kim Bokhyeong, Jo Hanchang, Constitutional Court Justices. April 4, 2025 Photo by Joint Press Corps

Justices Lee Miseon and Kim Hyeongdu: "Prolongation of Witness Examination Procedure May Lead to Suspension of Trial"

Justices Lee Miseon and Kim Hyeongdu viewed the adoption of statements as evidence to be in line with the purpose of Article 40 of the Constitutional Court Act. In their decision, the two justices stated, “The determination of whether this is 'contrary to the nature of constitutional adjudication' falls within the exclusive authority of the Constitutional Court,” and “The impeachment trial procedure targets the dismissal from public office and does not adjudicate criminal liability, thus fundamentally differing from criminal procedure.”

They also noted that strictly applying the hearsay rule inevitably leads to prolonged procedures. The two justices said, “Given the nature of the Constitutional Court, which is composed of a single panel of nine justices, in some cases, repetitive renewal of arguments and lack of quorum for hearings may cause the prolongation of impeachment trial procedures, which could lead to suspension of the impeachment trial.”

Justices Kim Bokhyeong and Jo Hanchang: "Due to Nationwide Impact, Hearsay Rule Should Be Strictly Applied"

On the other hand, Justices Kim Bokhyeong and Jo Hanchang stated that considering the gravity of impeachment trials and the protection of the respondent’s right to defense, it is necessary to strictly apply the hearsay rule going forward. The two justices said, “Forming a conviction on the substance of the case and recognizing grounds for prosecution should preferably be based on evidence directly examined in open court before the justices, similar to criminal procedure, and opportunities for cross-examination should be guaranteed for hearsay evidence.”

They added, “A dismissal decision against the president can cause national losses due to interruption of official duties, a political vacuum, and political turmoil caused by division of public opinion, thereby affecting the entire nation.” They warned that if impeachment trials and criminal trials based on the same facts yield different outcomes, it would undermine the unity of the legal order and trust in the judiciary, and stated, “It is necessary to apply the hearsay rule as strictly as possible in impeachment trials to reduce discrepancies between impeachment and criminal trials.”

Meanwhile, Justice Jeong Hyeongsik issued a supplementary opinion calling for legislation to limit the number of times an impeachment motion can be proposed against the same individual in different sessions. The National Assembly voted on the first impeachment motion against President Yoon during the 418th regular session, but it failed due to insufficient quorum, and the motion was reintroduced and passed during the 419th extraordinary session.

Justice Jeong stated, “Because the National Assembly’s extraordinary sessions can be convened freely upon the request of at least one-quarter of the total members, the party holding the majority in the National Assembly can repeatedly propose a specific agenda at very short intervals as needed. Such repeated proposals circumvent the principle of non bis in idem, which intends to allow some interval between sessions for reconsideration and deliberation of the agenda, thereby undermining its purpose.”