[23-1(B) KCCR 126, 2010Hun-Ma474, April 28, 2011]

In a vote of 4 (denial): 4 (denial): 1 (unconstitutional) the ConstitutionalCourt held that Article 111, Section 1, Item 2 (the "Instant Provision") of the Local Autonomy Act (the "LAA"), which in the instance ofdetention of the head of a local government upon his or her indictment,suspends the head from performing duties and has the deputy as acting head of that local government, neither infringes the right to hold public offices nor violates the right to equality because it is not inconsistent with the rule against excessive restriction or the principle of presumption of innocence.

Background of the Case

A.Complainant was elected as head of the Seoul Metropolitan boroughof Jung-gu in the 5th nationwide local election held on June 2, 2010, and took office on July 1, 2010.

B.The complainant, however, was arrested on June 19, 2010, after being elected and was charged with violation of the election law.Upon indictment on June 29, 2010, he was suspended from performinghis duties as the head of the Seoul Metropolitan borough of Jung-gu from the first day of taking office in accordance with the Instance Provision, which stipulates that the head of local government shall be suspended from performing his or her functions "when he or she is detained after indictment" and the deputy head is required to act for him or her.

C.On July 29, 2010, the complainant filed this constitutional complaint claiming that the Instant Provision infringes on his right to hold public office and the right to equality.

Provision at Issue

Local Autonomy Act (wholly revised by the Act No. 8423 on May 11, 2007)

Article 111 (Acting Head of Local Government, etc.)

(1)Where the head of a local government falls under any of the following sub-paragraphs, the deputy Mayor, vice governor, or deputy head of the City/Do or Si/Gun/Gu concerned (hereafter referred to as the "deputy head of the local government" in this Article) shall act for him or her:

2. Where he or she is detained after an indictment;

Summary of Decision

1. Majority Opinion (Denial)

A. Opinion (Denial) of Four Justices

(1) Whether the rule against excessive restriction is violated

The legislative purpose of the Instant Provision is to prevent a harmful effect on the normal and effective administration of local government for the welfare of the residents by suspending the head of local government from his duties during the period of detention, a situation that makes him or her unable to perform his or her duties in a proper and timely manner.

In the instance where the head of local government is detained such that he or she is physically isolated from society and his or her communication is limited even with visitors, it would be hard to secure continuity and flexibility in the administration of the local government or to implement policies which bring out the best result for the residents' welfare. Moreover, there would be uncertainty about when the detained head of local government would be released and return to office. For the foregoing reasons, we cannot find any adequate measures other than suspension of the head of local

government to prevent such negative effects on timely and smooth administration of local government and welfare of the residents.

Besides, since detention is enforced by a warrant issued by the courtbased on the judge's recognition of the reasons for detention, there is no room for us to take any further consideration of the nature of the crime or the gravity of the matters at issue, such as whether the crime committed by the head of local government is related to his or her duties, whether the crime causes any specific harm on the administration of local government, or whether the crime is a serious antisocial crime or a minor offences of negligence, in determiningwhether suspension is necessary. Additional requirements for suspensionof performing duties, therefore, need not be set forth.

Considering that the head of local government is temporarily suspended from his or her office only for the period of detention and therefore he or she can always go back to work whenever he or she is released from detention, we find that the infringement caused by the Instant Provision is the least restrictive and the legal interests concerned are also balanced.

(2) Whether the principle of presumption of innocence is violated

The Instant Provision intends neither to convey the message of socialcondemnation on the fact that the head was indicted and detained, nor to suspend his function by relying on the likelihood of being found guilty. Rather it is to avoid a loss of efficiency in execution of his duties and potential harm to the integrity and continuity of the administration of the local government as a result of detention, i.e., his physical absence from work. In other words, such suspension imposed in accordance with the Instant Provision can be deemed as neither 'a disadvantage stemmed from an acknowledgment of the commission of crime or guilt' nor 'a social and moral condemnation based on the assumption of his guilt.' For these reasons, the Instant Provision is not against the principle of presumption of innocence.

(3) Whether the right to equality is violated

As for the Prime Minister, ministers of various administrative branches and the members of the National Assembly, there is no provision such as the suspension provision like the Instant Provision. Compared to those mentioned above, however, the head of local government, who is an elective public officer having sole authority over decision making, the nature of the job and the detention status have different effect on the integrity of administration of the local government. Thus, we do not deem the differential treatment between the two groups aforementioned as arbitrary.

Also, different treatment between the head of local government who is detained and the one who is hospitalized, the latter of which is provided with a 60-day wait-period prior to suspension, is deemed as reasonable. While access to the detention center by ordinary people is strictly restricted, hospital visitation is relatively unrestricted, discharge from hospital is predictable with only rare exceptions, and the job may be performed in the hospital.

B. Concurring opinion (Denial) of Four Justices

(1) Whether the rule against excessive restriction is violated

Aside from the legislative intent of preventing a harmful effect on the normal and effective administration of local government and the welfare of the residents by suspending the head of local governmentfrom his duties during the period of his or her detention, the legislaturealso intends to recover the residents' trust by excluding from office the head of local government who is indicted and detained by warrant, as he has undermined the high level of morality and integrity required for the position and thereby damaged the residents' confidence in the head of local government.

To achieve those two aforementioned legislative aims, there are no meaningful alternatives other than excluding the head of local government from the date of occurrence to the date of closure of his

indictment and detention that undermine the high level of ethics and honesty required in his position and damage the residents' confidence. We therefore neither need to set forth additional conditions for the suspension nor take into account the nature of the crime or gravity of the matter at issue. The Instant Provision achieves the balance between the public interest pursued and the individual's interest violated.

(2) Whether the principle of presumption of innocence is violated

Even though a certain disadvantage is one basically prohibited under the principle of presumption of innocence, it might be considered to be consistent with that principle when it is given in a way to respect the principle of proportionality and is least restrictive.

Suspension of performing duties imposed by the Instant Provision, a restriction on the complainant's right to hold public office, amounts toa disposition which has a disadvantageous effect. However, the purposeof imposing such suspension is not to condemn or punish the head based on the prosecution's indictment or the court's detention warrant but to achieve the two legislative goals mentioned above. Additionally, the disadvantage does not go beyond what is necessary and least restrictive, complying with the principle of proportionality. Therefore, it is not inconsistent with the principle of presumption of innocence.

(3) Whether the right to equality is violated

Unlike the case of detention, the instance where the head of local government is hospitalized due to illness or personal reasons is an event which is irrelevant to whether the morality and integrity required of the position and the residents' confidence has been undermined. Thus, there is a reasonable basis for the different treatment when the head of local government is allowed a 60 day wait period prior to the enforcement of suspension of performing duties in the case of hospitalization.

C. Dissenting Opinion of One Justice

In my view, suspension of duties is imposed only with two requirements–indictment by public prosecutor and detention warrant issued by a judge–before the final judgment is rendered. However, the detention status following indictment and warrant issuance is just the beginning of the criminal procedure including trials, sentencing, appeals, and other procedures leading to the final judgment. Thus, the presumption of innocence is violated here because, based upon the premise that the complainant is guilty on his crime, it conveys a negative message and social condemnation, going beyond what is necessary and least restrictive.

It is unlikely that there is a profound and pressing need to suspend the office of the head of local government that retains democratic legitimacy by solely relying on the fact that the head of local government is detained, because, at the stage of issuing a warrant, it is not possible to determine whether the accused is guilty or whether a grave harm on the public interest would be caused unless the head is immediately suspended. Likewise, the public prosecutor's indictment has no particular significance in light of the practice of criminal justice against the suspects or the accused who are detained. I conclude that suspending the duties of the head of local government by solely relying on the two requirements, without additional requirements, does not comply with the rule against excessive restriction, infringing on the complainant's right to hold public office.

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