20.Suspension from Duty of Heads of Local Governments

[22-2(A) KCCR 526, 2010Hun-Ma418, September 2, 2010]

In this case, the Court held incompatible with the Constitution Article 111 Section 1 Item 3 of the Local Autonomy Act, which mandates a deputy head of the local government to act for its head in case he/she is sentenced to imprisonment without prison labor or a heavier one and before the sentence has yet to be final, stating that the provision infringes on the right to hold public office and the equality right by violating the principle of presumption of innocence and rule against excessive restriction. Given that the provision has portions both constitutional and unconstitutional, it was ordered that the legislature were to selectively amend the provision by December 31, 2011 and the application of the provision be suspended until the date of amendment.

Background of the Case

In September of 2009, the complainant was sentenced to eight months of imprisonment and two-year suspension of execution for violation of the Political Fund Act at the Seoul Central District Court. With the appeal pending at the Supreme Court and the sentence yet to be determined, the complainant was elected as Governor of Gangwon-do at the fifth nationwide regional elections held in June 2, 2010 and sworn in as the new Governor on July 1, 2010. The Governor, however, was excluded from office immediately after his inauguration in accordance with Article 111 Section 1 Item 3 of the Local Autonomy Act (hereinafter the "Instant Provision") and is currently unable to discharge his office.

In response, the complainant filed the constitutional complaint in this case, arguing that the instant provision infringed on his right to hold public office and equality and violated the principle of presumption of innocence.

Provision at Issue

Local Autonomy Act (Wholly Amended by Act No. 8423, May 11, 2007)

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

(1)Where the head of a local government falls under any of the following subparagraphs, 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/her:

3.Where he/she is sentenced to imprisonment without prison labor or a heavier one, which has yet to become final;

Summary of the Decision

I.Concurring Opinion of Justice Lee, Kang-Kook, Justice Kim, Hee-Ok, Justice Kim, Jong-Dae, Justice Mok, Young-Joon and Justice Song, Doo-Hwan

A.Article 27 Section 4 of the Constitution provides that "The accused shall be presumed innocent until a judgment of guilt has been pronounced," which indicates that the accused should in principle be regarded as innocent until declared guilty and that neither tangible nor intangible form of disadvantage can be given under presumption of guilt. Yet, the instant provision attaches negative connotation to the fact that the accused is "sentenced to imprisonment without prison labor or a heavier one"—that community trust and the head of a local government's commitment to his/her duty will be undermined," and, solely based on the condition that such holding has been announced, the accused is put to a disadvantage of getting his/her duty suspended for an indefinite period of time until the determination of the sentence. Moreover, strict conditions are not even adopted to keep disadvantages to a necessary minimum in imposing them. Therefore, the instant provision violates the principle of presumption of innocence.

B.1.Although the option of excluding the head of a local government from his/her office was taken in order to achieve the

legislative purpose of establishing discipline in public office and preventing challenges to community welfare and operation of local government administration, the legislature, according to the rule against excessive restriction, has to choose a means least invasive of individual fundamental rights out of all the available means. Yet, it is difficult to conclude that excluding the head of a local government from his/her duties without additional conditions other than being sentenced to imprisonment without prison labor or a heavier one is the least restrictive means to serve the stated legislative purpose. In particular, in case a person is elected a head of a local government after being sentenced to imprisonment without prison labor or a heavier one as the complainant in this case, the legislative purpose of "maintaining the public trust in the administration of local governments" does not constitute an adequate ground to restrict the right to hold public office of heads of local governments.

2.Although sentenced to imprisonment without prison labor or a heavier one, the head of a local government has no difficulty in fulfilling his/her duty as far as they are indicted without physical detention/custody and there is thus no direct need for a deputy head to act on Head's behalf; as such, even if there is an immediate need for such suspension of duty, the suspension should be limited to cases where effective operation of local government administration is likely to face a huge risk or where irrecoverable public interest can be violated when such suspension has to wait until determination of the sentence; it is necessary to limit the application of the provision to cases where the accused has committed a crime which clearly requires suspension of duty before determination of sentence depending on the type and gravity of the crime concerned, such as whether the crime sentenced to imprisonment without prison labor or a heavier one took place in the course of or after the election of the local government head concerned and whether the offender committed an intentional or negligent crime.

In light of the aforementioned reasons, the instant provision does not give the local government head the opportunity to vindicate him/herself and extends its application indefinitely to all types of

crimes deserving imprisonment without prison labor or a heavier one, thereby totally excluding the possibility of case-specific judgments on the need for suspension of duty. The instant provision, therefore, restricts fundamental rights to the extent that the restriction exceeds the necessary minimum.

3.In accordance with the instant provision, the head of a local government concerned will get the prejudice among community residents that he/she is a convicted criminal as well as have his/her duty suspended for an indefinite period of time. Furthermore, if the accused head of the local government turns out to be innocent, he/she will face serious disadvantages to the already violated right to hold public office, which would be irrecoverable at the point to exculpation. As such disadvantages are by no means so insignificant in comparison with the public interest aimed to be achieved by the instant provision, this also results in a failure to achieve balanced interests.

4.Therefore, the instant provision violates the rule against excessive restriction in regulating the right to hold public office of the complainant who serves as the head of a local government.

C.The National Assembly members essentially share the same status as heads of local governments in terms of the ethics and credibility required in the course of election or discharge of duties as public officials elected to their position. Yet, there is no system that suspends National Assembly members from fulfilling their duties even before the sentence of imprisonment without prison labor or a heavier one becomes final. In that sense, imposing such regulation only on the heads of local governments is not deemed a reasonable discrimination and thus violates the principle of equality.

II. Opinion of Constitutional Incompatibility by Justice Cho, Dae-Hyun

The instant provision has to meet the conditions set forth in Article 37 Section 2 of the Constitution in regulating the election results, the right to hold public office of heads of local governments and the right

to presumption of innocence until proven guilty of the accused. In the case of heads of local governments who are directly entrusted with the right to hold public office by the people through elections, it is difficult to conceive that continuing to allow them to fulfill their public duties even in the following cases serves the purpose of the commission: i) when the legitimacy of their election has been lost or ii) when they have committed a crime in their discharge of duties contrary to the purpose of the commissioning. Therefore, if the head of a local government is sentenced to imprisonment without prison labor or a heavier one due to one of the aforementioned two cases, it is hardly a direct violation of the principle of presumption of innocence nor the rule against excessive restriction even if the local government head gets his/her duty suspended before determination of the sentence. Other than the stated two cases, however, preventing the head from fulfilling his/her duties before determination of sentence just because he/she was sentenced to imprisonment without prison labor or a heavier one is against the principle of presumption of innocence and the rule against excessive restriction.

As the instant provision has parts both constitutional and unconstitutional and the unconstitutional portion violates the fundamental right of the complainant, it is proper to entrust the selective procedure of distinguishing the unconstitutional and constitutional parts to the National Assembly's legislation. Therefore, it is required that the instant provision be held incompatible with the Constitution.

III.Dissenting Opinion of Justice Lee, Kong-Hyun, Justice Min, Hyeong-Ki and Justice Lee, Dong-Heub

A.1.The main legislative purpose of the instant provision is to prevent risks of undermining the community trust and harming work commitment present in managing effective and efficient operation of local government administration, and excluding the local government head from his/her office appears to be the only and desperate means to avoid the stated risks when the sentence is yet to be final desperate. For this reason, such an action is considered as an

appropriate means.

2.The instant provision is deemed to have employed the least restrictive means possible given the following points: i) if the court issued a sentence of imprisonment without prison labor or a heavier one based on comprehensive consideration of all factors including the kind and gravity of crime, it can be rightfully considered that a concrete risk concerning the community welfare and local government administration has already taken place and is thus needless to set forth additional conditions such as "in case of a concrete risk" or "in the event of a possible violation of irreparable public interests," ii) it is difficult to set a clear standard that indicates what degree and type of crime warrants immediate suspension of duty without the need for any additional conditions, iii) the suspension of duty pursuant to the instant provision is merely a temporary one once the accused gets lighter sentence or is found innocent at a higher court, and the temporary suspension leads to minimum disadvantage since the position of the head of a local government is still preserved during the suspension, and iv) it is not easy to come up with a procedure that offers elected public officials the opportunity to vindicate themselves on the need for suspension of duty.

3.While the disadvantage that the head of a local government suffers in accordance with the instant provision is limited to the necessary minimum, the disadvantage is far outweighed by the public interest of preventing the risks to community welfare and effective and efficient local government administration possibly caused by undermined trust in public duty when the local government head is sentenced to imprisonment without prison labor or a heavier one. Therefore, the instant provision also achieves the balance of interests.

4.In this context, it is unlikely that the instant provision has violated the rule against excessive restriction in regulating the right to hold public office of heads of local governments. In legislation of other countries, a number of legal systems are found to automatically suspend the heads of local governments without any further conditions when they are convicted at a lower court for a crime calling for

statutory punishment

B.The principle of presumption of innocence means "one is not to be discriminated under the presumption of guilt until proven guilty, and even if discrimination has to take place it has to be consistent with the principle of proportionality so that it is confined to the least minimum extent." Therefore, it is not that all types of discrimination are against the principle of presumption of innocence, but that discrimination consistent with the principle of proportionality, when kept to the necessary minimum, is exceptionally not contrary to the principle of presumption of innocence.

The suspension of duty imposed by the instant provision is a kind of a regulation which restricts the right to hold public office of the complainant who is the criminally accused and, conceptually, is an action that results in a disadvantage of the complainant. Yet, because the purpose of levying such duty suspension lies not in condemnation of conviction or regulation but with removing the danger that may occur in the process of running the local government administration. Also, as the resulting disadvantages are kept to the necessary minimum as mentioned above, the principle of proportionality has been complied with. Therefore, the principle of presumption of innocence has not been violated.

C.National Assembly members are members of a panel-like organization named National Assembly and thus differ from the heads of local governments who are fully entrusted to leading administrative institutions. Also, the National Assembly members vary in the nature of their responsibilities which are difficult to be performed by others on the members' behalf. Furthermore, due to such difference in the nature of their responsibilities, duty suspension of National Assembly members inevitably varies in the influence it has on the operation of different areas of work. For this reason, imposing restriction only on the heads of local governments, as opposed to National Assembly members, as prescribed by the instant provision has reasonable grounds, and, therefore, this measure is not considered as arbitrary discrimination contrary to the principle of equality.

D.It is a corollary that, according to the rule of law, no public office, however important for advancing local autonomy, is immune from legal restraint solely based on electoral victory, so it is hardly the case that the instant provision is contrary to the intention of residents in the community. In addition, viewed from what meaning the legislature attached to the instant provision and what the legislative purpose of the provision are, the need for suspension of duty remains unchanged regardless of whether the local government head was elected before or after being sentenced to imprisonment without prison labor or a heavier one. Therefore, it would mean no difference to the constitutionality review of the instant provision even if the local government head is elected after having been sentenced to imprisonment without prison labor or a heavier one.

IV.Five Justices held that the instant provision is unconstitutional, and one Justice voted that the provision is incompatible with the Constitution. When the number of opinions of unconstitutionality and incompatibility are added, the number of votes, in accordance with Article 23 Section 2 Item 1 of the Constitutional Court Act, reaches the quorum of six votes required for ruling in favor of the complainant. Therefore, the instant provision will be declared incompatible with the Constitution, and the provision will lose effect from January 1, 2012 unless amended by legislature no later than December 31, 2011. Before the instant provision is amended, courts, other state institutions and local governments will be ordered to stop applying the provision.

The ruling of the Court in the consolidated case of 2002Hun-Ma699 and 2005Hun-Ma192, May 26, 2005, in which the Court's opinion varied from this case as it held that the relevant provision of the former Local Autonomy Act did not restrict the local government head's right to hold public office nor violated the principle of presumption of innocence, will be modified accordingly to the extent not contrary to the holding of this case.