Impeachment of the President (RohMoo-hyun)Case

(16-1 KCCR 609, 2004Hun-Na1, May 14, 2004)

Contents of the Decision

1.The subject matter to be adjudicated by the Constitutional Court

in the impeachment adjudication proceeding.

2.Whether or not the due process principle is directly applicable in

the impeachment proceeding at the National Assembly. (negative)

3.The nature of the impeachment proceeding set forth in Article 65

of the Constitution.

4.The meaning of the grounds for impeachment set forth in Article 65 of the Constitution.

5.The constitutional ground for the obligation of political neutralityby public officials concerning elections.

6.Whether or not the President is a "public official" within themeaningof Article 9 of the Act on the Election of Public Officialsand the Prevention of Election Malpractices (hereinafter the "Public Officials Election Act").(affirmative)

7.Whether or not the statements of the President expressing supportfor a particular political party at press conferences violate the obli-

gation of political neutrality by public officials.(affirmative)

8.Whether or not the statements of the President expressing supportfor a particular political party at press conferences are in violation of the provision that prohibits electoral campaigns by public officials set forth in Article 60 of the Public Officials Election Act. (negative)

9.The obligation of the President to abide by and preserve the Constitution.

10.Whether or not the act taken by the President toward the NationalElection Commission's decision finding the President's breach of the election law violates the constitution. (affirmative)

11.Whether or not the President's act proposing a national referen-

dum on whether he should remain in office violates the Consti-

tution. (affirmative)

12.Whether or not the incidents of corruption involving the Presi-

dent's close acquaintances and associates constitute a violation of law by the President. (negative)

13.Whether or not the political chaos and economic disruption causedby the unfaithful performance of the official duties and reckless management of the state affairs can be a subject matter for an impeachment adjudication at the Constitutional Court. (negative)

14.Whether or not the "valid ground for the petition for impeachmentadjudication" set forth in Section 1, Article 53 of the ConstitutionalCourt Act is limited to a grave violation of law. (affirmative)

15.The standard of review to be applied in determining the "gravityof the violation of law".

16.Whether or not the President should be removed from office where,as in the instant

case, there is no finding of the President's active intent against the constitutional order in his specific acts of violations of law. (negative)

17.Whether or not the separate opinions may be disclosed at the impeachment adjudication proceeding. (negative)

Summary of the Decision

1. The Constitutional Court, as a judicial institution, is restrained in principle to the grounds for impeachment stated in the National Assembly's impeachment resolution. Therefore, no other grounds for impeachment than those stated in the impeachment resolutionmay constitute the subject matter to be adjudicated by the Constitu-

tional Court at the impeachment adjudication proceeding. However, with respect to the 'determination on legal provisions,' the violation of which is alleged in the impeachment resolution, the Constitutional Court in principle is not bound thereby. Therefore, the Constitutional Court may determine the facts that led to the impeachment based on other relevant legal provisions as well as the legal provisions which the petitioner alleges have been violated. Also, the Constitutional Court is not bound by the structure of the grounds for impeachment as categorized by the National Assembly in its impeachment resolution in determining the grounds for impeachment. Therefore, the questionof in which relations the grounds for impeachment are legally examinedis absolutely for the Constitutional Court to determine.

2. The principle of due process is a legal principle that, before a decision is made by the governmental power, entitles a citizen who might be prejudiced by such a decision to an opportunity to expresshis or her opinion and thereby influence the process of the proceedingsand the result thereof. In this case, the impeachment proceeding at the National Assembly concerns two constitutional institutions of theNational Assembly and the President, and the National Assembly's res-olution to impeach the President merely suspends the exercise of the power and authorities of the President as a state institution and does not impede upon the fundamental rights of the President as a private individual. Therefore, the due process principle that has been formed as a legal principle applicable to the exercise of governmental power by a state institution in its relationship with its citizens shallnot be directly applicable in the impeachment proceeding that is designedto protect the Constitution against a state institution. Furthermore,there is no express provision of law concerning the impeachment pro- ceeding that requires an opportunity to be heard for the respondent. Therefore, the argument that the impeachment proceeding at the Na- tional Assembly was in violation of the due process principle is without merit.

3. Article 65 of the Constitution provides for the possibility of impeachment of high-ranking public officials of the executive branch and of the judiciary for violation of the Constitution or statutes. It thereby functions as a warning to such public officials not to violate the Constitution and thus also prevents such violations. Further, where certain state institutions are delegated with state authority by the citizenry but abuse such authority to violate the Constitution or statutes, the impeachment process functions to deprive such state institutions of their authority. That is, reinforcing the normative power of the Constitution by holding certain public officials legally responsible for their violation of the Constitution in exercising their official duties is the purpose and the function of the impeachment process.

4. An analysis of the specific grounds for impeachment set forth in Article 65 of the Constitution reveals that the 'official duties' as provided in 'exercising the official duties' mean the duties that are inherent in particular governmental offices as provided by law and also other duties related thereto as commonly understood. Therefore, acts in exercising official duties mean any and all acts or activities necessary for or concomitant

with the nature of a specific public office under the relevant statutes, orders, regulations, or administrative customs and practices. As the Constitution provides the grounds for impeachment as a "violation of the Constitution or statutes," the'Constitution' includes the unwritten Constitution formed and estab-

lished by the precedents of the Constitutional Court as well as the express constitutional provisions;the 'statutes' include the statutes in their formal meaning, international treaties that are provided with the same force as statutes, and the international law that is generally approved.

5.The obligation to maintain political neutrality at the election owed by public officials is a constitutional request drawn from the status of public officials as 'civil servants for the entire citizenry' as set forth in Article 7(1) of the Constitution; the principle of free election set forth in Articles 41(1) and Article 67(1) of the Constitution; and the equal opportunity among the political parties guaranteed by Article 116(1) of the Constitution. Article 9 of the Public Officials Election Act is a legal provision that specifies and realizes the above constitutional request.

6. 'Public officials' within the meaning of Article 9 of the Public Officials Election Act mean any and all public officials who should be obligated to maintain neutrality concerning elections, that is, morespecifically, any and all public officials who are in a position to threatenthe 'principle of free election' and 'equal opportunity among the polit-ical parties at the election.' Considering that practically all public officials are in a position to exercise undue influence upon the election in the course of exercising official duties, the public officials here include, in principle, all public officials of the national and local governments, that is, all career public officials as narrowly defined, and, further include public officials at offices of political nature who serve the state through active political activities. Here, the exception is that members of the National Assembly and the members of thelocal legislatures are excluded from 'public officials' within the meaningof Article 9 of the Public Officials Election Act, as no political neutrality concerning elections can be requested from such members of the legislatures due to their status as the representatives of the political parties and the directly interested parties in the political campaign.

Therefore, political neutrality at the election is a basic obligation owed by all public officials of the executive branch and of the judi- ciary. Furthermore, since the President bears the obligation to over- see and manage a fair electoral process as the head of the executive branch, the President is, as a matter of course, a 'public official' within the meaning of Article 9 of the Public Officials Election Act.

7. If the President makes a one-sided statement in support of a particular political party and influences the process through which the public opinion is formed, the President thereby interferes with and distorts the process of the independent formation of the public's opinion based on a just evaluation of the political parties and the candidates. This, at the same time, diminishes by half the meaning of the political activities continuously performed by the political parties and the candidates in the past several years in order to obtain the trust of the public, and thereby gravely depreciates the principle of parliamentary democracy. The relevant part of the President's statements at issue in this regard repeatedly and actively expressed his support for a particular political party in the course of performing the President's official duties and further directly appealed to the public for the support of that particular political party.

Therefore, the president's statements toward the entire public at press conferences in support of a particular political party made by taking advantage of the political significance and influence of the office of the President, when political neutrality of public officials is required more than ever before as general elections approach, were inviolation of the neutrality obligation concerning elections as acts un-

justly influencing the elections and thereby affecting the outcomeof the elections by taking

advantage of the status of the President.

8. Article 58(1) of the Public Officials Election Act makes it a prerequisite for the electoral campaign 'whether or not a candidate can be specified,' by defining the concept of 'electoral campaign' adopting the standard of 'being elected.' When the statements at issue in this case were made on February 18, 2004 and February 24, 2004, the party-endorsed candidates had not yet been determined. Therefore, the statements in support of a particular political party when the party-endorsed candidates were not yet specified did not constitute an electoral campaign.

Furthermore, considering that the president's statements at issue herein were neither actively made nor premeditated as such statements were made in the form of the President's response to questions posed by the reporters at press conferences, neither was there an active or premeditated element to be found in the President's statements, nor, as a result, a purposeful intention sufficient to find the nature of a political campaign. Therefore, the respondent's statements cannotbe deemed as active and intended electoral campaign activities com-

mitted with an intention to have a particular candidate or certain identifiable candidates win or lose the election.

9. The 'obligation to abide by and protect the Constitution' of the President set forth in Articles 66(2) and 69 of the Constitution is the constitutional manifestation that specifies the constitutional principle of government by the rule of law in relation to the President's performance of official duties. While the 'obligation to abide by andprotect the Constitution' is a norm derived from the principle of gov-

ernment by the rule of law, the Constitution repeatedly emphasizes such obligation of the President in Articles 66(2) and 69, considering the significance of the status of the President as the head of the state and the chief of the executive branch. Under the spirit of the Constitution as such, the President is the 'symbolic existence person-

ifying the rule of law and the observance of law' toward the entire public.

10. The President's acts denigrating the current law as the 'vestige of the era of the government-power-interfered elections' and publicly questioning the constitutionality and the legitimacy of the statute from his status as the President do not conform to the obligation to abide by and protect the Constitution and statutes. The President, of course, may express his or her own position and belief regarding the direction for revising the current statute as a political figure. However, it is of great importance that in which circumstances and in which relations such discussions on possible statutory revisions take place. The President's statements denigrating the current election statutes made as a response to and in the context of the National Election Commission's warning for the president's violation of such election statutes cannot be deemed as an attitude showing respect for the law.

The statements as such made by the President, who should serve as a good example for all public officials, might have significantly negative influence on the realization of a government by the rule of law, by gravely affecting the other public officials obligated to respect and abide by the law and, further, by lowering the public's awareness to abide by the law. To conclude, the act of the President questioning the legitimacy and the normative power of the current statute in front of the public is against the principle of government by the rule of law and is in violation of the obligation to protect the Constitution.

11.The national referendum is a means to realize direct democracy,and its object or subject matter is the 'decision on issues,' that is, specific state policies or legislative bills. Therefore, by the own nature of the national referendum, the 'confidence the public has inits representative' cannot be a subject matter for a national referen-

dum and the decision of and the confidence in the representative under our Constitution may be performed and manifested solely through elections.

The President's suggestion to hold a national referendum on whether he should remain

in office is an unconstitutional exercise of the President's authority to institute a national referendum delegated by Article 72 of the Constitution, and thus it is in violation of the constitutional obligation not to abuse the mechanism of the national referendum as a political tool to fortify his own political position. Although the President merely suggested an unconstitutional nationalreferendum on the people's confidence and did not yet actually institutesuch referendum, the suggestion toward the public of a national con-

fidence referendum1), which is not permitted under the Constitution,

is itself in violation of Article 72 of the Constitution and not in conformity with the president's obligation to realize and protect the Constitution.

12. As Article 65(1) of the Constitution provides 'as the President, ... exercises his or her official duties' and thereby limits the grounds for impeachment to the exercise of the 'official duties,' the above provision, as construed, mandates that only those acts of violation of law performed by the President while holding the office of the President may constitute the grounds for impeachment. The alleged grounds for impeachment concerning the unlawful political funds that involved the Sun & Moon corporation and the respondent's presidential election camp are based on facts that arose before the respondent was elected and sworn in on February 25, 2003 as the President. Therefore, such alleged grounds are clearly irrelevant to the respondent's exercise of his official duties as President and donot constitute grounds for impeachment. With respect to the miscon-

ducts of the President's close associates and aides that took place subsequent to the respondent's assumption of the office of President,none of the evidence submitted to the bench throughout the entire proceedings in this case supports any finding that the respondent instructed or abetted the acts of Choi Do-sul and others including receiving unlawful funds or was otherwise illegally involved in such acts. Therefore, the alleged grounds for impeachment based on the above facts are without merit.

13. Article 69 of the Constitution provides for the President's 'obligation to faithfully perform the official duties,' as it provides for the obligation of the President to take the oath of office. Although the 'obligation to faithfully perform the official duties' of the President is a constitutional obligation, this obligation, by its own nature, is, unlike the 'obligation to protect the Constitution,' not the one the performance of which can be normatively enforced. As such, as a matter of principle, this obligation cannot be a subject matter for a judicial adjudication.

As Article 65(1) of the Constitution limits the ground for impeachment to the 'violation of the Constitution or statutes' and the impeachment adjudication process at the Constitutional Court is solely to determine the existence or the nonexistence of a ground for impeachment from a legal standpoint, the ground for impeachment alleged by the petitioner in this case concerning the respondent's faithfulness of the performance of the official duties such as the political incapability or the mistake in policy decisions, cannot in and by itself constitute a ground for impeachment and therefore it is not a subject matter for an impeachment adjudication.

14. Article 53(1) of the Constitutional Court Act provides that, "when there is a valid ground for the petition for impeachment adjudication, the Constitutional Court shall issue a decision removing the respondent from office." The above provision may be interpreted literally to mean that the Constitutional Court shall automatically make a decision of removal from office in all cases where there is any valid ground for impeachment as set forth in Article 65(1) of the Constitution. However, if every and any minor violation of law committed in the course of performing official duties were to mandate removal from office, this would offend the request that punishment under the Constitution proportionally correspond to the obligation owed by the respondent, that is, the principle of proportionality. Therefore, the 'valid ground for the petition for impeachment adjudication'

provided in Article 53(1) of the Constitutional Court Act does not mean any and all incidence of violation of law, but the incidence of a 'grave' violation of law sufficient to justify removal of a public official from office.

15. The question of whether there was a 'grave violation of law' or whether the 'removal is justifiable' cannot be conceived by itself.Therefore, the existence of a valid ground for the petition for impeach-

ment adjudication, that is, the removal from office, should be determinedby balancing the 'degree of the negative impact on or the harm to the constitutional order caused by the violation of law' and the 'effect to be caused by the removal of the respondent from office.'

On the other hand, a decision to remove the President from officewould deprive the 'democratic legitimacy' delegated to the President bythe national constituents through an election during the term of theoffice and may cause political chaos arising from the disruption ofthe opinions among the people, that is, the disruption and the anta-

gonism between those who support the President and those who do not, let alone a national loss and an interruption in state affairs from the discontinuity of the performance of presidential duties. Therefore, in light of the gravity of the effect to be caused by the removal of the President, the ground to justify a decision of removal should also possess corresponding gravity.

Although it is very difficult to provide in general terms which should constitute a 'grave violation of law sufficient to justify theremoval of the President from office,' a decision to remove thePresident from office shall be justified in such limited circumstances as where the maintenance of the presidential office can no longer be permitted from the standpoint of the protection of the Constitution, or where the President has lost the qualifications to administrate state affairs by betraying the trust of the people.

16. Considering the impact on the constitutional order caused by the violations of laws by the President as recognized in this case in its entirety, the specific acts of the President in violation of law cannot be assessed as a threat to the basic order of a free democracyas there is no finding of an active intent to stand against the consti-

tutional order therein.

The acts of the President violating the laws were not grave in terms of the protection of the Constitution to the extent that it would require the protection of the Constitution and the restoration of the impaired constitutional order by a decision to remove the President from office. Also, such acts of the President cannot be deemed as acts that betrayed the trust of the people to the extent that they would require the deprivation of the trust delegated to the President by the people prior to the completion of the presidential term. Therefore, there is no valid ground sufficient to justify a decision to remove the President from office.

17. Article 34(1) of the Constitutional Court Act provides that the deliberation of the Constitutional Court shall not be public. Therefore, the separate opinions of the individual Justices may be noted in the decision only when a special provision permits an exception to such secrecy of deliberation proceedings. With respect to the impeachmentadjudication, no provision for the exception to the secrecy of deliber-

ation exists. Therefore, in this impeachment adjudication, the separateopinions of the individual Justices or the numbers thereof may not be noted in the decision.

However, it should be noted that concerning the above position, there was also a position that the 'separate opinions may be notedin the decision as Article 36(3) of the Act should be interpreted to leavethe question of whether to note individual opinions in an impeachment adjudication to the discretion of the participating justices.'

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Parties

Petitioner

The Chair of the Legislation and Judiciary Committee of the NationalAssembly of the Republic of Korea, on behalf of the National Assemblyof the Republic of Korea

Counsel of Record: Kang Jae-sup and 66 others

Respondent

Roh Moo-hyun, the President of the Republic of Korea

Counsel of Record: Ryu Hyun-seok and 9 others

Holding

The petition for the impeachment adjudication is rejected.

Reasoning

1. Overview of the Case and the Subject Matter of Review

A. Overview of the Case

(1)Resolution of the impeachment and the petition for impeachment adjudication

The National Assembly of the Republic of Korea proposed the 'motion for the impeachment of the President (Roh Moo-hyun)' pres-

ented by Assembly members Yoo Yong-tae and Hong Sa-deok and 157 others before the second plenary session at the 246th session(extraordinary) on March 12, 2004, and passed the motion by 193 con-

current votes out of the entire Assembly membership of 271. The Chair of the National Assembly Legislation and Judiciary Committee,Kim Ki-chun, acting ex officio as the petitioner, requested an impeach-

ment adjudication against the respondent by submitting the attestedoriginal copy of the impeachment resolution to the Constitutional Court on the same date pursuant to Article 49(2) of the Constitutional CourtAct.

The full text of the National Assembly's impeachment resolutionagainst the respondent is attached hereto as Appendix 3.

(2)Summary of the grounds for the impeachment reso-

lution of the National Assembly

(A) Corrupting the national law and order

1) Act of supporting a particular political party

A) The respondent violated Articles 9(1), 60(1), 85(1), 86(1)and 255(1) of the Public Officials Election and Election MalpracticePrevention Act (hereinafter referred to as the 'Public Officials Elec-

tionAct'), in (i) stating, at a joint press conference with six newsmediaorganizations in the Seoul-Incheon region on February 18, 2004

, that "I simply cannot utter what will follow should the quorum toresist the

constitutional revision be destroyed; and (ii) stating, as aninvited guest at a press conference with the Korean NetworkReporters Club on February 24, that "the public will make it clear whether I will be backed to do it well for the four years to come or I cannot stand it and will be forced to step down," "I expect that the public will overwhelmingly support the Uri Party at the general election," and "I would like to do anything that is legal if it may lead to votes for the Uri Party."

B)The respondent violated Articles 9(1), 59, and 87 of the PublicOfficials Election Act and Article 69 of the Constitution, in (i) stat-

ing, on December 19, 2003, when he participated in an evententitled"Remember 1219" hosted by the so-called "Roh-Sa-Mo,"2)that "Thecitizens revolution is still going on. Let's step forwardonce again";and (ii) stating, at ameeting with the journalists in the Gangwon-Doregionon February 5, 2004, that "the 'Citizen Participation0415(Kook-

Cham 0415)' members' participation in politics should be permittedand encouraged legally and politically."

C) Pursuant to the report in Joong-Ang Ilbo on February 27,2004, the document entitled 'the strategic planning of the Uri Partyfor the 17th General Election' states that it is necessary to 'establishthe control tower where the party, the administration, and CheongWa Dae (the Office of the President) together participate' in orderto invite the candidates for the general election, and lists 'the party-

Cheong Wa Dae-the administration' in the order of importancein theadministration of the state affairs for the general election. Thisconfirms the organizational intervention into the election by CheongWa Dae, and the command of the strategy of a particular politicalparty for the general election by the respondent was in violation ofArticles 9(1) and 86(1)(ii) of the Public Officials Election Act.

D)The respondent violated Article 9(1) of the Public OfficialsElection Act and Articles 8(3) and 11(1) of the Constitution, in (i)stating, at a beginning-of-the-year press conference on January 14,2004, that "there was a split because there were those who supportedreform and those who did not support reform fearing it, and I wouldlike to go together with the Uri Party as those who supported me atthe presidential election are running the Uri Party"; and (ii) stating,at a gathering with the close associates on December 24, 2003, that"if you vote for the New Millennium Democratic Party, you are helping the Grand National Party."

E)The respondent violated Article 237(1)(iii) of the Public Officials Election Act and Articles 10, 19 and 24 of the Constitution, in inducing the support for a particular political party by threateningthe publicand in repeatedly making remarks affecting the public's mind concerningthe general election.

2) Act in contempt of the constitutional institutions

A)The respondent violated Articles 66(2), 69 and 78 of the Con-

stitution and Article 7(1) of the National Intelligence ServiceAct,in ignoring the impropriety recommendation by the National AssemblyConfirmation Hearing Committee on April 25, 2003, for Ko Young-gu,as the head of the National Intelligence Service.

B)The respondentviolated Articles66(2) and 69 of the Constitut-

ion, Article 63 of the National Public Official Act, and Article 311 ofthe Criminal Code, in describing the then incumbent members of theNational Assembly as 'weeds to be mowed' in his open letter to thepublic via the Internet on May 8, 2003.

C)The respondent violated Articles 63(1), 66(2) and 69 of theConstitution,in taking the position that seemed to refuse the Nation-

al Assembly resolution of September 3, 2003 that proposed the removalof Kim Doo-kwan from the office of the Minister of Government Ad-

ministration and Home Affairs, by postponing the acceptance of suchresolution.

D)The respondent violated Articles 40, 66(2), and 69 of the Con-

stitution, in (i) expressing regrettableness on March 4, 2004 towardsthe National Election Commission's decision requesting the Presidentto observe the neutrality obligation concerning elections, through theSenior Secretary to the President for Public Information;(ii) denigratingthe current election laws, on the same date, as the 'vestigeof the eraof the government-power-interfered-elections'; and, (iii)on March8,devaluating his violation of Article 9 of the Public Officials ElectionAct as 'miscellaneous' and 'minor and equivocal.'

E)The respondent violated Articles 65(1), 66(2) and 69 of theConstitution, in stating on March 8, 2004 that the NationalAssembly'smoving forward on the impeachment proposal was an 'unjust oppres-

sion.'

F)The respondent violated Articles 66(2), 69 and 72 of the Con-

stitution, in stating at a press conference on October 10, 2003 that,with respect to the suspicion as to Choi Do-sul's reception of thesecret fund from the SK Group, "when the investigation closes, Iwill ask the public the confidence in the President concerning thepublic distrust accumulated during the past including this matter";and stating at the policy speech on the state affairs at the NationalAssembly on October 13 that "the vote of confidence will be feasibleeven under the current law upon reaching a political agreementalthough there are some legal arguments upon it," "although a wayto associate the vote of confidence with certain policies is under discussion, it would rather not be done that way and none of theconditions will be attached," and "if I win the vote of confidence, Iplan to reorganize the cabinet and Cheong Wa Dae within this yearand to carry out reform to state affairs."

(B) Power-engendered corruption

1)Act of receiving illegal political funds concerning the Sun &Moon Group

A)In June 2002, the respondent had Ahn Hee-jung request theNational Tax Service to reduce the taxes for the Sun & Moon Group(CEO, Moon Byung-wook), whereby the taxes for the Sun & MoonGroup was reduced to 2.3 billion Korean Won from 17.1 billion KoreanWon. This was in violation of Article 129(2) of the Criminal Codeand Article 3 of the Enhanced Punishments for the Specified CrimesAct.

B)The respondent had a breakfast meeting with Moon Byung-wookon November9, 2002 at Riz Carlton in Seoul, for which Lee Gwang-jaeacted as an agent. Immediately after the respondent left the break-

fast meeting, Lee Gwang-jae received 100 million Korean Won fromMoon Byung-wook. This was in violation of Article 30 of the PoliticalFund Act (hereinafter referred to as the 'Fund Act') and Article 32of the Criminal Code.

C)The respondent violated Article 129 of the Criminal Code,Article61 of the State Public Officials Act, and Article 30 of theFund Act, in receiving two packages of money(presumed to be approx-

imately 100 million Korean Won) from Moon Byung-wook atKimhaeTourists Hotel on July 7, 2002 and forwarding it to his accompanyingsecretary Yeo Taek-soo.

2)Receiving illegal political fund concerning the presidential election camp

In Roh Moo-hyun's presidential election camp, Chung Dae-chul,the chief of the Joint Election Strategy Committee, received 900 millionKorean Won, Lee Sang-soo, the General Affairs Director, received700million Korean Won, and Lee Jae-jung, the Campaign HeadquarterDirector, received 1 billion Korean Won, of illegal political fund,all ofwhich was forwarded to Roh Moo-hyun's presidential election camp.The respondent's involvement in the above transactions was in vio-

lation of Article 30 of the Fund Act.

3) Involvement in the corruption of close associates

A) Corruption concerning Choi Do-sul

Choi Do-sul (i) embezzled 250 million Korean Won and deliveredthe funds to Sun Bong-sul, the CEO of the Jang-Soo-Cheon company,in May 2002, which were the remaining funds in the account belongingto the New Millennium Democratic Party Election Committee BusanBranch as the balance from the local elections, in order to pay theobligation owed by the respondent concerning the Jang-Soo-Cheoncompany; (ii) collected illegal funds in the amount of 500 millionKorean Won and delivered such funds to Sun Bong-sul for the periodof December 2002 to February 6, 2003, in order to pay the obligationowed to Jang-Soo-cheon; (iii) received illegal funds in the amountof 100 million Korean Won through an account under an assumed namefor the period of March to April of 2002, in order to create fundsforthe presidential candidacy nomination of the respondent;(iv) receivedillegal funds in the amount of 296.5 million Korean Won from the NexenTire company and others after the presidential election; (v) received47 million Korean Won from Samsung and others during his officeas the General Affairs Secretary for the President; (vi) receivednegotiable certificates of deposits from the SK Group in the amountofapproximately 1.1 billion Korean Won immediately after the presi-

dential election. The above acts of Choi Do-sul were impossiblewithout the respondent's direction or tacit permission. Therefore, suchacts of the respondent were in violationof Article 61(1) of the StatePublic Officials Act, Article 30 of the Fund Act, Article 3 of the Actof Regulation and Punishment for the Concealment of Criminally GainedProfit, and Articles 31, 32, 129 and 356 of the Criminal Code.

B) Corruption concerning Ahn Hee-jung

(i)Between August 29, 2002 and February 2003, Kang Geum-wonprovided 1.9 billion Korean Won of illegal funds by way of a disguisedsale and purchase of real estate owned by Lee Gi-myung; (ii) AhnHee-jung collected 790 million Korean Won of illegal funds from September through December of 2002 and delivered such funds toSunBong-sul and others; and (iii) Ahn Hee-jung received 50 millionKoreanWon of illegalfunds at the time of the presidential candidacynomination process, 3 billion Korean Won of illegal funds from Samsung

atthe time of the presidential election, and 1 billion Korean Won of illegal funds between March and August of 2003. The respondent violated Article 2 of the Enhanced Punishments for the SpecifiedCrimes Act,Article 61(1) of the State Public Officials Act, Article 30of the FundAct, and Articles 31 and 32 of the Criminal Code, as therespondent directed and abetted the above acts.

C) Corruption concerning Yeo Taek-soo

Yeo Taek-soo received 300 million Korean Won of illegal fundsfrom the Lotte Group and provided 200 million Korean Won out ofsuch funds for the formation of the Uri Party during his office asan administrative officer at Cheong Wa Dae. The respondent violatedArticle 61(1) of the State Public Officials Act, Article 30 of theFunds Act, and Articles 31, 32 and 129 of the Criminal Code, as therespondent was involved in such acts.

D) Corruption concerning Yang Gil-seung

Yang Gil-seung, who was the Chief of Personal Secretary Officefor the President, was arrested in June of 2003 for allegedly havingrequested to suspend the investigationin return for a lavish enter-

tainment at the expense of Lee Won-ho, who was then under inves-

tigation for an alleged tax evasion.

4) Public remarks as to the retirement from politics

The respondent publically maderemarks at the party representa-

tive meeting at Cheong Wa Dae on December 14, 2003 that the respon-

dent would retire from politics should the amount of illegal politicalfunds on the part of the respondent exceed one-tenth of that of theGrand National Party. The respondent, however, ignored such publicpromise of political retirement although the result of the public prose-

cutors office's investigation indicates thatthe amount reachedone-

seventh as of March 8, 2004. The respondent thereby violated Article69 of the Constitution, Article 63 of the State Public OfficialsAct, andArticle 30 of the Fund Act.

(C) Disruption of the National Administration

The respondent violated Articles 10 and 69 of the Constitutionin disrupting the public and drowning the economy into a rupture,notwithstanding his constitutionally mandated obligation as the headof the state and the ultimately responsible party of the national admin-

istration to sincerely endeavor to protect the public's right to pursuehappiness and to increase the public welfare by uniting the public andconsolidating the whole capacity for the nation's development andeconomic growth, by failing to maintain integrity in the policy goalsbetween growth and distribution, by increasing uncertainty at theindustry from oscillating without clear policy directions regarding theright-obligation relationship of the labor and the management, by exac-

erbating economic instability from causing confusion and theoreticalenmity among the policy administrators, by having unfaithfully per-

formed his office in, for example, pouring all his authority and effortin for a particular political party's victory at the general election,and by irresponsibly and recklessly administering the national affairsin, for example, making a remark that "the presidency is too damn muchtrouble to do," proposing a confidence vote, and declaring his retire-

ment from politics.

B. Subject Matter of Review

(1)The subject matters of review in the instant case are whetherthe President violated the constitution or statutes in performinghisduties and whether the President should be removed from office bythe issuance of the Constitutional Court's order as such.

(2)The Constitutional Court, as a judicial institution, is restrainedin principle to the grounds for impeachment stated in the NationalAssembly's impeachment resolution. Therefore, no other groundsfor impeachment except those stated in the impeachment resolutionconstitute the subject matter to be adjudicated by the ConstitutionalCourt at the impeachment adjudication proceeding.

However, with respect to the 'determination on legal provisions,'the violation of which is alleged in the impeachment resolution, theConstitutional Court in principle is not bound thereby. Therefore,the Constitutional Court may determine the facts that led to theimpeachment based on other relevant legal provisions as well as thelegal provisions which the petitioner alleges have been violated.Also, the Constitutional Court is not bound by the structure of thegrounds for impeachment as categorized by the National Assemblyin its impeachment resolutionin determining the grounds for impeach-

ment. Therefore, the question of in which relations the grounds forimpeachment are legally examined is absolutely to be determined bythe Constitutional Court.

2. Summary of the Impeaching Petitioner's Argument and the Respondent's Answer

A.Summary of the Argument of the Impeaching Petitioner

(1)Not only an act of a public official in violationof the provi-

sions of the Constitution or statutes in the performance of his orher official duties, but also immorality concerning the performanceof the officeor the political incapability and the error in politicaldecisionmaking, constitutes the grounds for impeachment. The groundsfor impeachment are "all" acts in violation of the Constitution andstatutes in the performance of his or her official duties and are notlimited to only "grave" violations. Even if it is necessary to limitthe grounds for impeachment to an 'act of grave violation' in ordertoprevent abuseof the impeachment system, it is manifest that aviolation of the constitutionallymandated obligation or an unfaithfulperformance of the official duties by the President, unlike other actsof violation, constitutes a grave violation of the Constitution or statutes.

Also, an act prior to inauguration as President may constitute a ground

for impeachment.

(2)The authority to determine whether an act of the Presidentin violation of the Constitution or statutes in the performance of hisor her official duties is of such gravity to justify the removal fromthe office lies in the National Assembly directly constituted by thenational constituents.The scope of the subject matter in the impeach-

ment adjudication proceeding at the Constitutional Court is limitedto the question of the constitutionality and legality of the impeachmentprocedures and to the question of whether ornot the specific viola-

tions that allegedly constitute the grounds for impeachment in factexist.

(3)The respondent, both prior to and following the inaugurationas President, continuously and repeatedly made remarks that cast adoubt on his qualification as President and his will to preserve thebasic order of free democracy and instigated the disintegration of the national opinions. Also, the respondent impeded the politicalneutrality and independenceof the public prosecutors' office by inter-

vening into or pressuring the investigation process. The respondentcontinuously performed an illegal election campaign for a particularpolitical party, upon which the constitutional institution of the NationalElection Commission determined, as unprecedented in the constitutionalhistory for an incumbent president,that the respondent was in viola-

tion of the Public Officials Election Act, and the decision and theaccompanying warning were announced to the respondent on March3, 2004. Notwithstanding, ignoring such warning, the respondenthas taken an anti-constitutional position directly denying the rule oflaw by declaring that he would also publicly support a particular political party in the future irrespective of the election law.

Also, the respondent violated various statutes such as Article 30of the Political Funds Act (punishing the act of receiving illegalpolitical funds), Articles 123 (abuse of office) and 129 (bribery) ofthe Criminal Code, in getting directly and indirectly involved withnumerous incidents of receiving illegal funds and embezzlement byhis close associates prior to and following his winning the presiden-

tial election. The respondent violated the Constitution and statutessuch as Article 69 of the Constitution (obligation to abide by theConstitution), in suggesting, concerning certain corruption mattersinvolving his close associates, a national referendum whether he shouldremain in office, which is not permitted under the Constitution, and,concerning illegal funds forthe presidential election, in publicly de-

claring that he would retire from politics had such illegal funds beenin excess of

certain amount and then ignoring such promise.

Furthermore, although the respondent, as the president of anation, should endeavor to unify the nation, to develop economy, andto promote publicwelfare, the respondent, abandoning such constitu-

tionally mandated obligations, disintegrated the national opinions bymaking statements that instigated antagonism and jealousy amongvarious classes in our society, exacerbated economic instability byuncertain policy goals between 'growth and distribution' and confusionamong the policy administrators, and led the national economy andthe people's livelihood into distress by causing economic stagnationand large-scale unemployment among the younger generation thusreturning to the public agony and misery harsher than that duringthe IMF foreign-currency crisis, thereby violated Articles 10 (theobligation to protect the public's right to pursue happiness) and 69(the obligation to faithfully perform the office in order to promotethe public welfare) of the Constitution.

The National Assembly, as the above can no longer be tolerated,unavoidably, in order for the happiness of the public and the futureof the nation, reached the resolution to impeach the President, whichis the sole means under the current Constitution to directly hold res-

ponsible and check the President against misrulings in violation ofthe Constitution and statutes.

B. Summary of the Respondent's Answer

(1) On the Question of Legal Prerequisites

It is the abuse of the impeachment authority by the National As-

sembly that, in the instant case, the National Assembly hastily resolvedto impeach the President while no sufficient grounds or evidence forimpeachment existed, thereby suspending the authority of the President,and it attempts to inquire into the grounds and the evidence for im-

peachment through the adjudication procedure at the ConstitutionalCourt.

The Grand National Party and the New Millennium DemocraticParty threatened to oust party-member assemblypersons should theynot participate in the impeachment resolution. The assemblypersonswho participated in the resolution process did a public vote with nocurtain hung at the voting booth, with certain assemblypersons showingtheir marked votes to the whip of the party to which they belonged.Also, the Speaker of the National Assembly voted by proxy.

The Speaker of the National Assembly unilaterally changed thetime when the general meeting wouldopen from 2 o'clock in the after-

noon to 10 o'clock in the morning, without consulting the representa-

tive member of the Uri Party, which is a negotiating party3)of theNational Assembly.

The Speaker of the National Assembly impeded the voting rightsof the assemblypersons who were members of the Uri Party, byhastily declaring the closure of the vote upon completion of vote bythe assemblypersons belonging to the Grand National Party, the NewMillennium Democratic Party and the United LiberalDemocrats, with-

out cautiously assessing the circumstances regarding whether the as-

semblypersons belonging to the Uri Party would participate in voting.

The Speakerof the National Assembly impeded the right of assem-

blypersons to inquire and discuss in violation of Article 93 of theNational Assembly Act, by foregoing the procedure of explaining thepurpose but instead distributing the printed materials, and by forcingthe vote without any procedure for inquiry and discussion, in the delib-

eration process for the impeachment motion.

The National Assembly violated the Constitution by impedingthe right of assemblypersons to inquire and discuss, in passing theimpeachmentmotion as a single measure by way of a single vote,without going through the procedures to inquire and discuss and tovote individually on each of the three stated grounds for impeachment,while the impeachment resolution in the instant case contains threedistinct grounds for impeachment against the respondent.

The resolution on the impeachment is in violation of due processas the respondent was not provided with any notice or opportunitytostate his opinion at the impeachment process in the National Assem-

bly.

(2) On the Merit of the Case

The authority to impeach the President and the authority to ad-

judicate thereon should be exercised with utmost caution within theboundary of checks and balances under the principle of separation ofpowers. The 'violation of the Constitution or statutes in performingofficial duties' provided in Article 65(1) of the Constitution is toovague to indicate which types of act of violation rendered in whichmethod are subject to impeachment. Considering the systematic andpractical dynamics surrounding the constitutional institutions and thefundamental order and the value ordained by the Constitution, thegrounds for impeachment against the President should correctly belimited to 'grave and apparent violation of the Constitution andstatutes deemed to impede upon the constitutional values and theconstitutionalfundamental order.'

The impeachment resolution in the instant case was reached bya National Assembly that has practically lost democratic legitimacy,with the termination of its term fast approaching, in pursuit of partyinterest and impulse beyond its authority delegated by thepublic;and was hastily processed even though there was no substantive groundthat would justify impeachment, withoutcareful investigation anddelib-

eration, democratic discussion, or any process to persuade the public.

With respect to the first alleged ground for impeachment entitledthe 'violation of the election law,' the President is a public officer ofa political nature who is permitted to be a member of a political partyand Article 9 of the Public Officials Election Act cannot be appliedto the President. Even if not, the statements at issue herein are notdeemed to be in violation of the Public Officials Election Act.

With respect to the second alleged ground for impeachment entitledthe 'corruption of the respondent's close associates and aides,' many ofthe alleged facts occurred prior to the respondent's inauguration asPresident, and the respondent was neither involved in the allegedcorruptionby, for example, directing or abetting such alleged acts,nor has the respondent's involvement been proven, therefore, suchalleged acts under this count do not constitute a ground for impeach-

ment.

With respect to the third alleged ground for impeachment entitledthe 'disruption of the national administration,' the allegation is differ-

entfrom the fact, and, even if true, the political incapacity or themisjudgment in policymaking of the President does not constitute aground for impeachment.

3. Review of the Legality of the National Assembly's Impeachment

A. National Assembly's Authority to Self-Regulate its Deliberation Proceedings

The National Assembly, as the representative of the public andas the legislative body, possesses vast authority to self-regulate itsadministration, including its deliberation process and internal regulation.This self-regulating authority should be respected in light of thedoctrine of separation of powers and the status and the function ofthe National Assembly, as long as there is no clear violation of theConstitution or statutes in the deliberative or legislative process ofthe National Assembly. Therefore, it is not desirable for other stateinstitutions to intervene and judge the legitimacy of a decision reachedby the National Assembly upon matters that fall within the scope ofits self-regulating authority, and no exception thereto appliesto theConstitutional Court (See10-2 KCCR 74, 83, 98Hun-Ra3, July 14,1998).

Also, the Speaker of the National Assembly is, in principle, vestedwith the general and inclusive authority and responsibility concerningthe deliberation process of the National Assembly, pursuant to Article10 of the National Assembly Act. Therefore, in cases of disputesas to the deliberation process at the general meeting or where thenormal deliberative process otherwise cannot apply, the method ofdeliberation and of resolution is to be determined by the Speaker ofthe National Assembly within the above authority endowed to theSpeaker. Such authority of the Speakerto preside over the deliber-

ation process is,widely interpreted,part of the self-regulating author-

ity of the National Assembly, and should be respected as such unlessexercised in a way clearly beyond its limit. As a principle, suchauthority may not be impeded upon by the Constitutional Court (See12-1 KCCR 115, 128, 99Hun-Ra1, February 24, 2000).

B.On the argument that the proceedings at the National Assembly lacked sufficient investigationand deliberation

The respondent argues that in order for the National Assemblyto petition for the impeachment of the President, the National Assemblymust sufficiently investigate the grounds for impeachment and theevidence thereto, to the extent that the Constitutional Court in itsimpeachment adjudication can readily determine the validity of thealleged grounds for impeachment. It is desirable, as a matter ofcourse, that the National Assembly thoroughly investigate the statedgrounds for impeachment prior to its reaching a resolution to impeach.However, Article 130(1) of the National Assembly Act provides that,"upon proposal for the impeachmentresolution, ... the National Assem-

bly may, by resolution at the plenary session, assign the matter tothe Legislation and Judiciary Committee for investigation," thus subjectsthe investigation to the discretion of the National Assembly. Therefore,even if the National Assembly did not perform a separate investigationin the instant case, this was not in violation of the Constitution orstatutes.

C.On the arguments of the forced voting, the non-

secret vote, and the proxy vote for the Speaker of the National Assembly

(1)Even if the Grand National Party and the New MillenniumDemocratic Party publicly declared that they "will oust from the partythose assemblypersons who will not participate in the vote for theimpeachment measure," this cannot be deemed as pressure or threatsubstantively preventing the assemblypersons from exercising theirvoting right pursuant to their conscience (Article 46(2) of the Consti-

tution, and Article 114-2 of the National Assembly Act) beyond theboundaries of the partycontrol permissible under today's party democ-

racy.

(2)Even if it was true that the screen at the voting booth wasnot pulled down at the time of voting or certain assemblypersons dis-

closed the content of their votes to the party whip of their respectiveparty membership, the question of the effect of such on the validityof the voting at the National Assembly is a matter for which thedecision of the National Assembly, with its self-regulating authorityregarding the deliberation process, should be respected. The Speakerof the National Assembly confirmed the validity of the votes, thereby,declaring the passing of the impeachment resolution, and there is noclear basis or materials indicatinga patent violation of the Constitu-

tion or statutes. Therefore, the Constitutional Court may not denythe effect of the votes on or the passing of the impeachment resolu-

tion, solely on these alleged facts.

(3)Withrespect totheargument thattheSpeaker of the Nation-

al Assembly voted by proxy, voting by proxy means that 'someonedoes not mark the vote and, instead, has a third party mark the vote on his or her behalf.' The acknowledged facts here merelyindicate that the Speaker of the National Assembly, pursuant to thecustom within the National Assembly, marked the vote himself fromthe seat reserved for the Speaker, folded the voting paper to securethe content of the vote from disclosure to others, and forwardedsuch voting paper to an officer so that the officer put the vote intothe ballot box. Therefore, there was no vote by proxy.

D.On the argument that the opening time for theNationalAssembly general meeting was arbitrarily

changed

The National Assembly Act, with respect to the opening time forits meetings and sessions, provides in Article 72 that the "meetingofthe plenary session shall be opened at two o'clock p.m. (on Saturday,at ten o'clock a.m.): provided, That the Speaker may change the openingtime after consulting with the representative assemblyperson of eachnegotiating party," thereby providing that a change of the opening timeshall be subjectto the consultation with the representing assembly-

person of each negotiation party.

The 'consultation' here may occur in various forms, by its nature,as the process for exchanging and receiving opinions, and the Speakerof the National Assembly makes the final judgment and decisionupon matters regarding such consultation. In the instant case, consi-

dering that a normal deliberationprocess pursuant tothe NationalAs-

sembly Act was hardly anticipated due to the continuous occupationof the floor for the general meeting by the assemblypersons of theUri Party notwithstanding the fact that the impeachment motion wasto be discarded past March 12, 2004 for the

expiration of the timelimit, and further considering that the prevailing majority of theassemblypersons, including the assemblypersons of the Uri Party, werepresent at the designated venue when the general meeting atissuewas opened at approximately 11:22 on March 12, 2004, the merefactthat the Representative Assemblyperson of the Uri Party and theSpeaker of the National Assembly did not directly discuss the openingtime cannot, by itself, be deemed as a violation of Article 72 of theNational Assembly Act oras an infringement on theright of assembly-

persons of the Uri Party membership to examine and vote.

E.On the argument that the voting was unilaterally declared to be closed

The respondent alleges that the Speaker of the National Assemblyunilaterally declared that the voting was closed disregardingwhetheror not theassemblypersons of the Uri Party would intend to partic-

ipate in voting. However, the minutes of the National Assembly general meeting for March 12, 2004 indicate that the Speaker, atthat time, urged two or three times those who had not yet voted toparticipate in voting and declared that the voting would be closedshould there be no more votes. It cannot be, then, deemed that theSpeaker of the National Assemblyobstructed the Uri Party assembly-

persons from exercising their voting rights by unilaterally closingthe voting.

F.On the argument that the inquiry and discussion

process was lacking

The respondent argues that the forcefully performed voting witha mere distribution of the printed materials instead of the explanationof the purpose by the assemblyperson who proposed the impeachmentmotion, without any inquiry or discussion process, in violation of Article93 of the National Assembly Act, impeded the assemblypersons' rightto inquire and discuss.

Article 93 of the National Assembly Act provides that, 'withrespect to such subject matters which have not been examined by acommittee, the proponent of such matter should explain its purpose.'The above minutes of the National Assembly general meeting indicatethat, in the deliberation process for the impeachment motion in theinstant case, a 'document' was substituted for the proponent's expla-

nation of the purpose.There is no legal ground to deem this meth-

od as inappropriate.

Next, on the argument that the inquiry and discussion processwas lacking, as Article 93 of the National Assembly Act providesthat the 'general meeting, in deliberating the subject matters beforeit, shall vote upon inquiry and discussion,' it wouldhave been desir-

able, in light of the significance of the impeachment, if the NationalAssembly had rendered sufficient inquiry anddiscussion within the Na-

tional Assembly. However, with respect to the proposed impeachmentmotion not sent to the Legislation and Judiciary Committee, Article130(2) of the National Assembly Act stipulating that "a secret voteshall be taken to determine whether to pass an impeachment motionbetween 24 and 72 hours after the motion is reported to the plenarysession" can be deemed as a special provision concerning the impeach-

ment procedure and may be interpreted to mean that the 'impeachmentmotion may be put to a vote without inquiry and discussion.' Withthe self-regulating authority and the legal interpretation of the Nation-

al Assembly to be respected, such interpretation of the law cannotbe deemed as arbitrary or incorrect.

G.On the argument that each ground for impeachmentwas not separately voted on

In voting to decide whether to pass an impeachment resolution,it would be desirable to vote on eachof the stated grounds for im-

peachment separately, in order to appropriately protect the right tovote of the assemblypersons. However, the National Assembly Actdoes not contain any express provision regarding such and merelyprovides in Article 110 that the Speaker of the National Assemblyshould declare the title of the subject matter that is to be voted on.Pursuant to the above provision, the scope of the subject matter tobe voted on varies depending upon how the title of the subjectmatter is determined. Thus, whether or not more than one groundfor impeachment may be voted on as a single matter is, basically,up to the Speaker of the National Assembly who has the authorityto determine the title of the subject matter that is to be voted on.Therefore, the argument raised by the respondent in this regard lacks merit.

H.On the argument that the principle of due process was violated

The respondent argues that the impeachment resolution in theinstant case was in violation of the principle of due process sincethe respondent had not been officially notified of the facts allegedlyconstituting the grounds for impeachment nor had the respondent been provided with an opportunity to state his own opinions.

The principle of due process here, as the respondent argues, isthe legal principle that before the state authority makes a decisionprejudicing its citizen, such citizenshould be provided with an oppor-

tunity to state his or her own opinions, and should thereby be ableto affect the progress of the procedure and the result thereof.Thecitizen is not a mere object of the state authority but the subjectofthe process and only when a citizen may state his or her own opinionsprior to a decision concerning his or her own right can anobjectiveand fair procedure be guaranteed and the equality of statusin the procedure between the parties realized.

In the instant case, however, the impeachment procedures at theNational Assembly concern the relationship between two constitutionalinstitutions, the National Assembly and the President, and the impeach-

ment resolution by the NationalAssembly merely suspendstheexer-

cise of the authority vested in the President as a state institutionand does not infringe the basic rights of the President as a privateindividual. Therefore, the due process principle that has been formedas a legal principle applicable in the exercise of the governmentalpower by the state institution in its relationship with its citizensshall not be directly applicable in the impeachment proceeding thatis designed to protect the Constitution against a state institution.Furthermore, there is no express provision of law concerning the im-

peachment proceeding that requires an opportunity to be heard forthe respondent. Therefore, theargument that the impeachmentpro-

ceeding at the National Assembly was in violation of the due process principle is groundless.

4. Nature of the impeachment adjudication procedure in Article 65 of the Constitution and the grounds for impeachment

A.The impeachment adjudication procedure is a system designedto protect and maintain the Constitutionfrom infringement by high-

ranking public officials of the executive and judicial branches.

Article 65 of the Constitutionprovides for the possibility of im-

peachment of high-ranking public officials of the executive branch andthe judiciary for violation of the Constitution or statutes. It therebyfunctions as a warning to such public officials not to violate the Con-

stitution and thus also prevents such violations. Further, where certainpublic officials are delegated with state authority by the citizenrybutabuse such authority to violate the Constitution or statutes, theimpeachment process functions to deprive them of suchauthority.That is, reinforcing the normative power of the Constitution by holdingcertain public officials legally responsible for their violation of theConstitution in exercising their official duties is the purpose and thefunction of the impeachment adjudication process.

Article 65 of the Constitution includes the President in the defini-

tion of public officials who are subject to impeachment, memorializinga discerned position that even the President elected by the publicand thereby directly endowed with democratic legitimacy may be im-

peached in order for the preservation of the constitutional orderandthat the considerable political chaos that may be caused by a decisionto remove the President from office should be deemed as an inevitablecost of democracy in order for the national communityto protect thebasic order of free democracy. The system subjectingthe Presidentto the possibility of impeachment, thus realizes the principle of therule of law or a state governed by law that every person is underthe law and no possessor of the state power, however mighty, is above the law.

Our Constitution,in order to fulfill thefunction of the impeach-

ment adjudication process as a process dedicated to the preservationof the Constitution, expressly provides in Article 65 that the groundfor impeachment shall be a 'violation of the Constitution or statutes'and mandates theConstitutional Court to take charge ofthe impeach-

ment adjudication, thereby indicating that the purpose of the impeach-

ment system lies in the removal of the President 'not for politicalgrounds but for violations of law.'

B. The Constitution, in Article 65(1), provides for the groundsof impeachment that "the National Assembly may resolve to impeachthe President, ... upon violation of the Constitution or statutes by the President, ... in performing official duties."

(1)All stateinstitutionsare bound by the Constitution.Especial-

ly, the legislator should abide by the Constitution in the legislativeprocess and the executive branch and the judicial branch are boundby the Constitution in exercising the state authority vested by andunder the Constitution. Article 65 of the Constitution reemphasizesthat the state institutions of the executive and the judicial branchesare bound by the Constitution and statutes, and, on this very ground,sets forth the grounds for impeachment to be the violation of theConstitution and statutes, not limiting the grounds merely to the vio-

lation of the Constitution. The question of whether the executivebranch and the judicial branch abide by the statutes formed by thelegislative branch is directlyrelated to the question of their compli-

ance with the doctrine of separation of powers and the principle ofthe rule of law under the Constitution. Therefore, observance of thestatutes by the executive and

the judicial branches means, in turn,their compliance with the constitutional order.

(2)An analysis of the specific grounds for impeachment set forthin Article 65 of the Constitution here reveals that the 'official duties'as provided in 'exercising the official duties' mean the duties that areinherent in particular governmental offices as provided by law andalso other duties related thereto as commonly understood. Therefore,acts in exercising official duties mean any and all acts or activitiesnecessary for or concomitant with the nature of a specific public officeunder the relevant statutes, orders, regulations, or administrativecustomsand practices. Thus, the act of the President in exercisingofficial duties is aconcept not only including an act based on perti-

nent statutes, orders, or regulations, but also encompassing any actperformed by the President in his or her office as President withrespect to the implementation of state affairs,' and includes any suchacts, for example, visiting various organizations and industrial sites,participating in various events such as a dedication ceremony and anofficial dinner, appearing through the broadcasting media toexplaingovernment policies in order to seek the public understandingthereofand to efficiently implement national policies, and agreeing to hold apress conference.

The Constitution sets forth the grounds for impeachment as a"violation of the Constitution or statutes." The 'Constitution' hereincludes the unwritten constitution formed and established by theprecedents of theConstitutional Court as well as the express consti-

tutional provisions; the 'statutes' include not only the statutes intheir formal meaning, but also, for example, international treatiesthat are provided with thesame force as statutes, and the interna-

tional law that is generally approved.

5. Whether the respondent violated the Constitution or statutes in exercising his official duties

Article 53(1) of the Constitutional Court Act provides that the"Constitutional Court shall issue a decision removing the respondentfrom office should the grounds for the impeachment petition be valid."Therefore, in order to determine whether to issue a decision to removethe President from office, an examination should precede upon the ex-

istenceof the grounds for impeachment set forth in the Constitution,i.e., whether the 'President violated the Constitution or statutes inthe performance of his official duties.' In the immediatelyfollowingparagraphs, we will examine each of the grounds for impeachmentstated in the impeachment resolution of the National Assembly underthe respective categories.

A. Act of supporting a particular political party at a press conference (the statements at the press conference with six of the Seoul-Incheon area news media organizations on February 18, 2004, and as an invited guest at the press conference with the Korean Network Reporters Club on February 24, 2004)

Pursuant to the acknowledged facts, the President stated, at apress conference on February 18, 2004 with six of the Seoul-Incheonarea news media organizations, that "... I simply cannot utter whatwill follow should the quorum to resist the constitution revision bedestroyed"; and, at a press conference with the Korean NetworkReporters Club, as an invited guest, which was broadcasted nation-

wide on February 24, 2004, in response to a question posed by areporter

concerning the upcoming general election that 'how the re-

spondent would run the political affairs if the Uri Party wouldremain as a minority party unlike the anticipation of Chung Dong-

young, the Chairman of the Uri Party, projecting about 100 seats asa goal,' the respondent stated that "I expect that the public willoverwhelmingly support the Uri Party," "I would like to do anythingthat is legal if it may lead to the votes for the Uri Party," and"when they elected Roh Moo-hyun as the President, the public willmake it clear whether I will be backed to do it well for the fouryears to come or I cannot stand it and will be forced to step down."

On the other hand, no arbitrary amendment to the impeachmentresolution by the impeaching party in order to add new facts notstated in the original resolution is permitted in the impeachmentadjudication proceeding. The statement of the President made onMarch 11, 2004 that 'connected the general election to the matter ofconfidence of the President' is a fact not included in the originalimpeachment resolution of the National Assembly and merely statedin the impeaching party's briefsubmitted to the Court as an addition-

al ground for impeachment subsequent to the National Assembly'sresolution of impeachment and, as such, the Court does not examinesuch additionally stated ground.

(1)Obligation of a public official to maintain political

neutralityconcerning elections

The political neutrality obligation concerning elections owed bypublic officials is a constitutional request drawn from the status ofpublic officials set forth in Section 1, Article 7, of the Constitution;the principle of free election set forth in Section 1, Article 41, andSection 1, Article 67, of the Constitution; and the equal opportunityamong the political parties guaranteed by Section 1, Article 116 ofthe Constitution.

(A) Article 7(1) of theConstitution provides that "all public offi-

cials shall be servants of the entire people and shall be responsibletothe people," thereby setting forth that the public officials shall perform

their official duties for the welfare of the public as a whole and should

not serve the interest of a particular political party or organization.The status and the responsibility of the state institutions as theservant for the entire citizenry is, in the area of election, realizedinconcrete terms as the 'obligation ofthe state institutions to maintain

neutrality concerning elections.' The state institutions should servethe entire population, therefore, should act neutrally in the competition

among the political parties or political factions. Thus, Article 7(1)of the Constitution mandates that no state institutionshould exerciseinfluence inthe free competitionamong political factions by identify-

ing itself with a particular politicalparty or acandidate or taking sides

with a particular political party or a candidate in electoral campaigns

by use of the influence and authority vested in the office.

(B)Articles 41(1) and 67(1) of the Constitution provide for theprinciples applicable to the general election formembers of the Nation-

al Assembly and the presidential election, respectively. Althoughsuch provisions do not expressly mention the principle of free election,in order for any election to properly represent the political will ofthe public, the voters should be able to form and decide their ownopinions through a free and open process without undue extraneousinfluence. Therefore, the principle of free election is part of the fun-

damental principles of election as a basic premise to provide legitimacyfor the state institutions constituted by and through an election.

The principle of free election not only means that the voters shouldbe able to vote without forceful or undue influence from the state orthe society, but also that the voters should be able to make theirown judgment and decisions in a free and open process to form theirown opinions. The principle of free election, in turn, in the contextofstate institutions, means the 'obligation of public officials to maintainneutrality,' that is, the prohibition against the state institutions fromsupporting or opposing any particular political party or candidate byidentifying themselves with such particular political party or candidate.

(C)The obligation of public officials to maintain neutrality con-

cerning elections is mandated by the Constitution also from thestandpoint of equal opportunity among the political parties. The prin-

ciple of equal opportunityamong the political parties is a constitution-

al principle derived from the interrelationship of Article 8(1) of theConstitution that guarantees the freedom to form a political partyand the multi-party system and Article 11 of the Constitution thatsets forth the principle of equality. Particularly, Article 116(1) ofthe Constitution provides that "an equalopportunity should be guar-

anteed ... in the electoral campaign," thereby specifying the 'principleof equal opportunity among the political parties' concerning the politicalcampaign. The principle of equal opportunity among the politicalparties requires state institutions to act neutrally in the competitionamong political parties at the elections, thus prohibiting the state in-

stitutions from either favoring or prejudicing any particular politicalparty or candidate in the electoral campaign.

(2)Whether the respondent violated Article 9 of

the Public Officials Election Act

(neutrality obligation of a public official)

Article 9 of the Public Officials Election Act provides that "nopublic official or no one obligated to maintain political neutrality shouldact in a way unduly influencing the election or otherwise affectingthe outcome of the election," and thereby provides for the 'obligationofpublic officials to maintain neutrality concerning elections.'

(A)Whether the President is a 'public official' within the mean-

ing of Article 9 of the Public Officials Election Act

The issue here is whether the officials at certain political officessuch as the President fall within the definition of a 'public officialor anyone obligated to maintain political neutrality' of Article 9 ofthe Public Officials Election Act.

1)Article 9 of the Public Officials Election Act is a statutory

provision that specifies and realizes the constitutionally requested'obligation of public officials to maintain neutrality concerningelections,' derived from Article 7(1) (status of a public official as aservant for the public as a whole), Article 41, Article 67 (principleof free election) and Article 116 (principle of equal opportunity amongthe political parties) of the Constitution. Therefore, the 'public official'within the meaning of Article 9 of the Public OfficialsElection Actmeans any and all public officials who should be obligated to maintainneutrality concerning elections, that is, more particularly, any or allpublic officials who are in a position to threaten the 'principle offree election' and 'equal opportunity among thepolitical parties atthe election.' Considering that practically all publicofficials are in aposition to exercise undue influence upon the election in the course ofexercising through exercise of their official duties, public officialshere include, in principle, all public officials of the national and localgovernments, that is, all career public officials as narrowly defined,and, further include public officials at offices of political nature whoserve the state through active political activities (for example, thePresident, the Prime Minister, the ministers of

the administration,and the chief executive officer at various levels of local governmentsuch as the governor, the mayor, and the county magistrate).

The possibility of affecting the public's open opinion formulationprocess and distorting the political parties' competitive relationshipthrough the function and influence of theofficial duties is particular-

ly greater for the executive institutions at the national or local gov-

ernments. Therefore, political neutrality concerning elections is evenmore greatly requested than other public officials for thePresident and the chief executive officers at the local governments.

2)Obligating public officials to maintain neutrality concerning

elections in Article 9 of the Public Officials Election Act is a merespecification of the constitutional request of the principle of free elec-

tion, the principle of equal opportunity among the political parties,and the 'obligation of public officials to maintain neutrality concerningelections' derived from Article 7(1) of the Constitution, made applica-

ble to public officials in the area of election law. Thus, such provi-

sion is constitutional as long as it is interpreted to exclude the mem-

bers of the National Assembly and the members of the local legislaturesfrom whom political neutrality concerning elections cannot be requested.

The members of the National Assembly and the members of thelocal legislatures are not 'public officials' within the meaning of Article9 of the Public Officials Election Act, due to their status as politicalparty representatives and as active figures at the electoral campaign.The state institutions bear the obligation to maintain neutrality con-

cerning elections, in order to provide a 'forum for free competition'where the political parties can compete fairly at the election. In such'free competition among the political parties' guaranteed by the state'sneutrality obligation, the members of the National Assemblyplay anactive role at the electoral campaigns as the representativesof theirrespective political parties. That is, whereas the state institutions ad-

ministrate the election and should not affect the electionas the insti-

tutions that are mandated to guarantee a fair election, the politicalparties, on the other hand, are premised on the mission to affect theelection.

3)Also, a systematic analysis of the meaning of 'public officials'

in Article 9 of the Public Officials Election Act in its interrelationshipwith other provisions of the Public Officials Election Act or with otherstatutes mandates an interpretation that the concept of 'public offi-

cials' in the Public Officials Election Act includes all public officialsat political offices with the exception of the members of the Nation-

al Assembly and of the local legislatures. For example, the PublicOfficials Election Act uses 'public officials' as a general term toincludepublicofficialsatpoliticaloffices in its Article 60(1)(ⅳ) that pro-

hibits, in principle, the political campaign of public officials and alsoin Article 86(1) that prohibits the acts of public officials influencingthe election. Furthermore, in such other statutes as the State PublicOfficials Act (in Article 2 and other provisions) and the Political PartyAct (in Article 6 and other provisions), the term 'public official' isused inclusive of public officials at political offices.

4)Therefore, political neutrality concerning elections is a basic

obligation of all public officials ofthe executive branchand the judi-

ciary. Furthermore, since the Presidentbears the obligation to over-

seeand manage a fair electoral process as the head of the executivebranch, the President is, as a matter of course, a 'public official' withinthe meaning of Article 9 of the Public Officials Election Act.

(B) The President as a 'constitutional institution of a politicalnature'

and the 'obligation to maintain neutrality concerningelections'

The fact that the President is a 'constitutional institution of apolitical nature' is a distinct matter and should thus be distinguishedfrom the question of whether the President bears the 'obligation tomaintain political neutrality concerning elections.'

The President, in ordinary circumstances, is elected through theelectoral campaign endorsed and supported by a political party, as aparty member. Therefore, the President generally maintains partymembership after being elected as the President and also retains anaffiliationwith such particular political party. Current law also pro-

vides that the President may maintain party membership (Article 6(1)of the Political Party Act) and thus permits party activities, unlikeinthe case of other career public officials who are not allowedto be amember of a political party.

However, the President is not an institution that implements thepolicies of the ruling party,but instead, the President is the constitu-

tional institution that is obligated toserve and realize the public in-

terest as the head of the executive branch. The President is notthe President merely for part of the population or a certain particularpolitical faction that supported him or her at the past election, buthe or she is the President of the entire communityorganized as thestate and is the President for the entire constituents. The Presidentis obligated to unify the social communityby serving the entire pop-

ulation beyond that segment of the population supporting him or her.The status of the President as the servant of the entire public isspecified, in the contextof election, as the status of ultimately over-

seeing a fair election, and the Public Officials Election Act thereforeprohibits a political campaign by the President (Article 60(1)(iv) ofthe Public Officials Election Act).

Therefore, neither the fact that the President is a public officialof a political nature who is elected through nomination and supportby a political party nor the fact that certain political and party activ-

ities of the President are permitted can serve as a valid ground fordenying the obligation owed by the President to maintain politicalneutrality concerning elections.

(C)The President's 'obligation of political neutrality' concerningelections and 'freedom to express political opinions'

Every person in public office is obligated to maintain politicalneutrality concerning elections; on the other hand, at the same timesuch person is a citizen of the state and is subject of basic rightswho may assert his or her own basic rights against the state. Like-

wise, in the case of the presidency, the status of the President as aprivate citizen who may perform party activities for the party of hisof her membership and the status of the President as a constitutionalinstitution bearing the obligation to serve the entire population andthe public welfare should be distinguished as two distinct concepts.

The mandate that the President should maintain political neutralityconcerning elections does notrequire nopolitical activities or indif-

ference to party politics on the part of the President. Unlike otherpublic officials who are prevented from any party activities, thePresident, as a member or an officer of a political party, may notonly be involved with the internal decisionmaking process of theparty and perform ordinary party activities, but also may participatein the party convention to express his or her political opinions andexpress support for the party of his or her membership. However,at the same time, even whenthe President exercises his or her free-

dom of expression as a political figure, the President should restrainand limit himself or herself in light of the significance of the officeof the presidency and the potential reflections of his or her remarksand acts, and should not make an impression towards the public thatthe President may no more fairly exercise presidential duties due tohis

or her political activities outside the presidential duties. Further-

more, since the ultimate noticeability of the President obscures thePresident's 'exercise of basic rights as a private citizen' and 'activitywithin the boundary of the presidential duties,' the President, evenin the case where the President is exercising the freedom of speechas a private citizen and performing party activities, should do so ina way appropriate to a harmonious implementation of the presidencyand the maintenance of the functions thereof, that is, in accordancewith the request of Article 7(1) of the Constitution that the Presidentshould serve the entire public.

Therefore, the President should, in principle, restrain himself orherself from expressing his or her personal opinions towards partypolitics when exercising duties as the head of the state or the chiefexecutive officer. Furthermore, when the President makes statementsconcerning elections as the state institution of president and not asa party member or as a mere political figure, the President is boundby the obligation to maintain political neutrality concerning elections.

(D) Violation of Article 9 of the Public Officials Election Act

Article 9 of the PublicOfficials Election Act provides that"no pub-

lic official shall exercise undue influence upon the election or otherwiseaffect the outcome of the election," thereby setting forth acts to beprohibited inorder to realize the obligation of public officials to main-

tain neutrality concerning elections. Specifically, Article 9 of the PublicOfficial Act provides the 'act affecting the outcome of the election'as the violation of the neutrality obligation, and mentions the 'exerciseof undue influence upon the election' as a typical exampletherefor.

Therefore,the question of whether the President violated the neu-

trality obligation concerning elections depends upon whether the Pres-

ident 'exercised undue influence upon the election,' and should a publicservant affect the election by taking advantage of the political weightand influence vested in the official duties in a way not appropriatefor the mission to serve and be held responsible for the entire publicor residents, such is beyond the boundaries of political activities per-

mitted for a public official at the election, thus constituting an actof exercising undue influence upon the election.

Thus, if a public official is acting in the status of a public servantand taking advantage of the influence vested in the public duties, undueinfluence upon the election is found to be exercised, thus constitutingaviolation of the neutrality obligation concerning elections.

(E)Whether the statements of the President violated the neutralityobligation owed by public officials

Whether the statements of the President violated Article 9 of thePublic Officials Election Act depends upon the judgment as to 'whetherthe President affected the election through his statements by takingadvantage of the political weight and influence of the public officeof presidency in a way that was not appropriate for his status toserve the entire national public' in light of the specific contents ofthe statements, their timingand frequency, and the specific circum-

stance thereof.

1)The statements of the President at issue herein should be deemed

to have been made in the president's status as a public servant andin implementing the official duties of the President or in relationthereto. The President held the above press conferences not as aprivate citizen or a mere political figure, but as the President, and thePresident, in such course, made the statements supporting a particularpolitical party by taking advantage of the political weight and influencevested in his status as the President. Therefore, the statements madeby the President at the above press conferences constitute an act 'inthe performance of his official duties' within the meaning of Article65(1) of the Constitution.

2)In the case of the general election to constitute the National

Assembly, general parliamentary activities of the individual assembly-

persons, the political parties, and the negotiating parties during thefour-year term function as an important and meaningful indicatorfor the voters to form their judgment at the next election. Especiallyduring the period designated for the electoral campaign under the PublicOfficials Election Act, the political parties, the negotiating partiesandthe individual candidates are involved in a feverous competition inorder to obtain the trust and a vote from the voters in every possiblelegitimate way, by presenting their policies and political designs andcriticizing thepolicies of the opposing parties or candidates in com-

petition.

Here, if the President makes a statement unilaterally supportinga particular political party and influences the process by which thepublic forms its opinions, the President thereby intervenes and distortsthe process of the independent formation of the public's opinions basedon a just evaluation of the political parties and the candidates. This,at the same time, diminishes byhalf the meaning of the political ac-

tivities continuously done by the political parties and the candidatesin the past several years in order to obtain the trust ofthe public,and thereby gravely depreciates the principle of parliamentary democ-

racy. An electoral campaign in a democratic country is a free andopen competition for multiple parties and candidates, with a goal toobtain political power, to seek a vote, by emphasizing theirpoliticalactivities and achievements during the past and by convincing the votersof the legitimacy of the policy they pursue. Such free competitionrelationship among the political parties to obtain the votes throughthe voters' judgment upon the policies and political activities issignificantly perverted by one-sided intervention of the President sup-

porting a particular party.

The relevant part of the President's statements at issue repeatedlyand actively expressed his support for a particular political party inthecourse of performing hisofficial duties and further directly ap-

pealed to the public for the support of that particular political party.Therefore, the President's taking advantage of his political weightand influence vested in his public office through the above statementsfavoring a particular political party, by way of identifying himselfwith such political party, was an exercise of undue influence in away not appropriate for his responsibility as a servant for the entirepublic by the use of his status as a state institution. The Presidentthereby violated his obligation to maintain neutrality concerning elec-

tions.

3)The judgment upon whether there was undue influence onthe election may also vary depending upon the timing certain statements

supporting a particular party were made. Should a statement as suchbe made at a time where there is no temporally intimate relationto anelection, there is only a remote or limited possibility for such state-

mentsto affect the outcome of the election. However, as theelectionapproaches, the possibility for the President's statement supporting aparticular political party to affect the outcome of the election increases,therefore the President bears during such time period, as a stateinstitution, an obligation to restrain, as much as possible, any andall acts that may unfairly influence the election.

Although it is not possible to clearly discern when an one-sidedact of the state institution begins to particularly affect the election,the statements by the Presidentat issue herein were made on Febru-

ary 18, 2004 and February 24, 2004, with approximately two monthsremaining before the general election for the National Assembly onApril 15, 2004. Thus, at that time,

there existed a temporal intimacybetween the statements and the election as the preparation for theelectoral campaign had practically begun and the probability of theact of a state institution to influence the election was relatively high,and there was an increased demand for the political neutrality of stateinstitutions at least during that period of time.

4)The President, then, violated the obligation to maintain neu-

trality concerning elections, by making the statements at the pressconferences toward the entire public insupport of a particular polit-

ical party by taking advantage of the political weight and influenceof the presidency, when the political neutrality of public official washighly demanded more than ever due to the temporal proximity to theelection, while the President is ultimately responsible to overseeafair administration of election, since such statements constituted actsperformed using the respondent's status as the President unduly in-

fluencing the election and thereby affecting the outcome of the election.

(3)Whether the respondent violated Article 60 of

the PublicOfficials Election Act

(prohibition of electoral campaignby public official)

(A) Definition of electoral campaign

Article 58(1) of the Public Officials Election Act defines theterm 'electoral campaign' as an 'activity for winning an election orfor having another person be or not be elected.' The Public OfficialsElection Act, in a proviso in the same provision, lists certain 'actsnot deemed to constitute electoral campaign,' which are: mere expres-

sion of opinion toward election, preparatory activity to register as acandidate and for electoral campaign, mere expression of opinion inagreement or disagreement toward the parties' recommendation of thecandidates, and ordinary party activities.

Pursuant to the precedentsof the Constitutional Court, the 'elec-

toral campaign' under Article 58(1) of the Public Officials ElectionAct is any and all active andpremeditated deeds for a specific can-

didate's winning the election and obtaining the votes therefore, orany and all active and premeditateddeeds to have a specific candi-

date lose the election, among which there is an objective intent towin or to have win or lose the election (6-2 KCCR 15, 33, 93Hun-Ka4,July 29, 1994; 13-2 KCCR 263, 274, 2000Hun-Ma121, August 30, 2001).

The important standard in determining whether a specific actfalls within the definition of electoral campaign is the existence ofthe required 'intent,' whereas othernature of 'activeness' or 'premed-

itatedness' is a secondary element that contributes to an objectivefinding and analyzing of the required 'intent' of the electoral campaign.Since the 'purposeful intent' of the actor is a highly subjective elementand it is difficult to discern such element, such element may be foundto a certain extent of objectivitythrough other 'subjective elementsthat can be objectified' in relative terms of the 'activeness' of the deedor the 'premeditatedness' thereof.

(B)Whether the statements of the President constituted electoralcampaign

1) Article 58(1) of the Public Officials Election Act makes it aprerequisite for the electoral campaign 'whether or not a candidate canbe specified,' by adopting the standard of 'being elected' in definingthe concept of 'electoral campaign.' Therefore, the concept of electoralcampaign is premised upon that it should be an activity to have winor lose a 'specific' or at least 'discernible' candidate. Although astatement supporting a specific political party may satisfy the definitionof electoral campaign since an activity

intended to obtain votes for aspecific political party inevitably means an activity intended to havethe candidate nominated by that party in a certain district, eveninsuch circumstances, a candidate intended to have win through suchstatement must be discernible.

When the statements at issue in this case were made on Febru-

ary 18, 2004 and February 24, 2004, the party-endorsed candidateshad not yet been determined. Therefore, the statement supporting aparticular political party when the party-endorsed candidates were notspecified did not constitute an electoral campaign.

2)Also, whereas an activity requires a 'purposeful intent' to have

a certain candidate win or lose an election in order for such activityto constitute an electoral campaign, there was no such purposeful intentin the statements at issue in the instant case.

A)In order for an election to properly represent the political willof the public, the voters should be able to make their decisions in afree and open process to form their own opinions. At the sametime, the voters may make truly free decisions as voters only whenthey are aware of which candidates advocate and intend to implementthe policies they support and are correctly informed of the candidatesand the policy directions among which they can choose. Therefore,in terms of the public's right to know, it is required, as the electionapproaches, to provide certain information that may form the basisof the voters' decision or the information as to the parties and thecandidates, through various means such as press conferences.

Therefore, strictly including all of the statements at a press con-

ference in the definition of the electoral campaign would excessivelylimit the freedom of expression of a political figure. Especially, whenthe current Public Officials Election Act permits electoral campaignsonly during a short period designated for such, and even additionallylimits the electoral campaigns in various terms such as their subjectsand means, defining the term 'electoral campaign' too loosely mightmean an even further shrinking of the scope of freedom of politicalactivities given to the public.

Then, a statement at a press conference does not, in itself, cons-

titute an electoral campaign and likewise is not, in itself, excluded fromthe activities constituting an electoral campaign. Rather, more thananything else, whether a 'purposeful intent of a considerabledegreeto perform an electoral campaign by taking advantage of such opportu-

nities as press conferences can be found' should be determinedon acase-by-case basis, considering the totality of the specific aspects ofthe activity, such as the timing of the statement, its content,venue,and context. Here, the activeness and the premeditatedness of thestatement operates as an important standard in perceiving 'purposefulintent.'

B)In the instant case, although the statements at issue weremade in a close temporal proximity to the approaching general electionof April 15, 2004, such statements, in terms of the content and thespecific circumstance of the statements, were made in the form of aresponse to the question posedby the reporters at the press confer-

ences, thus in a passive and unintentional way. Considering this,no element of activeness or premeditatedness towards an electoralcampaign is found in the statements of the President. Therefore, suchstatements lacked any purposeful intent of a considerable degreesuffi-

cient to constitute an electoral campaign.

3)Therefore, although the statements of therespondentpleaded

to the public for their support of the Uri Party, such statements cannot be deemed as an act of an active and intentional electoralcampaign to have specific or discernible candidates win or lose theelection. Thus, the respondent's act in relevant

part did not violateArticle 60(1) of the Public Officials Election Act or its punishmentprovision of Article 255(1) of the Act.

(4)Whether the respondent violated Articles 85(1) or 86(1) of the Public Officials Election Act

Article 85(1) of the Public Officials Election Act prohibits publicofficials from conducting electoral campaigns using their status assuch, and deems electoral campaigns by public officials toward otherofficers of the same public office or the employees and officers of aparticular institution or business as an electoral campaign by way ofhis or her status as a public official.

However, as discussed above, the statements of the respondentat issue herein do not constitute electoral campaign activities, andtherefore such statements did not violate Article 85(1) of the PublicOfficials Election Act without further reviewing the same.

Article 86(1) of the Public Officials Election Act prohibits variouselection-related activities of a public official. First, Subdivision (i)prohibits an act publicizing the achievements of a specific party ora candidate towards other officers of the same public office or theconstituents within the election district. The respondent's statementsdo not contain any that publicized the achievements of the Uri Party,thus Subdivision (i) does not apply herein. Next, Subdivisions (ii)through (vii) are clearly inapplicable to the respondent's statementsin terms of the constituting elements in themselves. Therefore,there was no violation of Article 86(1) of the Public Officials ElectionAct.

B. Other remarks concerning the general election

(1)Remark at the Remember 1219 event on December 19,2003

Pursuant to the acknowledged facts, the President on December19, 2003, participated in the event entitled "Remember 1219" hostedby the reform netizen front such as the Roh-Sa-Mo,4)and statedthat "your revolution is yet to be concluded," "The citizen revolutionis still going on at this very moment," and that "my dear respectedmembers of Roh-Sa-Mo, and citizens, let's step forward once again."

The above statements were made at an event to celebrate theone-year anniversary of President Roh's election as the President,while invited to the event. It was hosted by certain associations thatsupported President Roh at the election such as Roh-Sa-Mo. Reviewedin the whole context, the abovestatements were to plead for partic-

ipation in election reform ('fair election where money is not required')or political reform, or simply to 'generally ask for the support of thePresident himself,' and, as such, can hardly be deemed as statementsseeking the support for a particular political party concerning the electionor inciting illegal an electoral campaign by the citizen organizations.Therefore, the above statements of the President were not beyondthe boundaries of permissible expression of opinions toward politicsand did not constitute a violation of the political neutrality obligationconcerning elections or an electoral campaign activity prior to thepermitted time period. Also, such statements did not constitute aviolation for any other statutes.

However, such an one-sided act of the President toward a specificcitizen organization might well cause a division between the groupsof citizens supporting the

President and the groups of citizens not sup-

porting the President and, thereby, does not conform to the obligationof the President to unify the national community as the President ofthe entire public, which might lead to the public's distrust againstthe administration as a whole.

(2)Remark at the luncheon with former presidential aideson December 24, 2003 at Cheong Wa Dae

Pursuant to the acknowledged facts, the President on December24, 2003, at a luncheon at Cheong Wa Dae with nine others includinghis former presidential aides who had resigned in order to run for thegeneral election, stated that "the next year's general election willhave a polarized structure between the Grand National Party andthePresident with the Uri Party on the other side," and that "a vote forthe New Millennium Democratic Party at next year's election willbe conceived as support for the Grand National Party."

In this case of a luncheon at Cheong Wa Dae hosted by the Pre-

sident and the first lady for the former Cheong Wa Dae aides andthe administrative officers, the nature of the meeting was privaterather than one hosted by the President in his official status as thePresident. The content of the statements can hardly be deemed asstatements intended by the President to unduly influence the electionby taking advantage of the political influence of his official status.The above statements of the President, considering altogether the otherparty of the speech, the context thereof and the motive therefor, wereacts justified by the freedom of expression under the Constitutionasan exercise of the freedom to express opinion towards politics, anddid not exceed the limits on the political activities permitted for publicofficials of political offices.

(3)Remark at the beginning-of-the-year press conferenceon January 14, 2004

Pursuant to the acknowledged facts, the President at the beginning-

of-the-year press conference on January 14, 2004, stated that "therewas a split because there were those who supported reform andthose who did not support reform fearing it, and I would like togo together with the Uri Party as those who supported me at thepresidential election are running the Uri Party."

The above statement was made as a response to a reporter'squestion asking 'when the President would join the Uri Party,' and,as such, was a mere expression by the President, who is permittedto have party membership, stating the party that he supported andhis position as to whether he would join such party and, if so,when. Therefore, since the President did not intend through the abovestatements to support a particular political party concerning the electionor thereby to influence the election, the above statement did not con-

stitute a violation of the neutrality obligation concerning elections owedby public officials or an electoral campaign activity.

(4)Remark at the meeting with the Gangwon-Do region journalists on February 5, 2004

Pursuant to the acknowledged facts, the President at the meetingwith the journalists in the Gangwon-Do region on February 5, 2004,stated that "the Citizen Participation 0415 (Kook-Cham 0415) members'participation in politics should be permitted and encouraged both legallyand politically."

The above statement was made as a response to the question askingthe "President's

opinionas to the debate concerning the Citizen Partici-

pation 0415's activities declaring to have certain candidates win theelection as illegal intervention into the election." As such, the state-

ment is understood to mean that, 'in order to be an advanced electoralculture, we should encourage voluntary participation and activitiesof the citizenry, and in order to achieve this goal the citizen partici-

pation in politics should be legally permitted as widely as possible,and at the least a generous legal interpretation is required as longas it is not against the law.' Therefore, the above statement was amere expression of the respondent's personal opinion upon the aspectof the public participation in politics, and thereby did not constituteaviolation of the neutrality obligation concerning elections or the pro-

hibition of electoral campaign activities.

(5)The "Uri Party Strategy for the 17th General Election"reported in Joong-Ang Ilbo dated February 27, 2004

The Joong-Ang Ilbo reported with respect to a classified documententitled "Uri Party Strategyfor the 17th General Election" on Febru-

ary 27, 2004, which posed suspicion as to the organizational interventionof Cheong Wa Dae into the election. However, even under the entireevidence submitted and accepted during the proceedings in this case,there is no finding that the respondent directed or was involved inthe election strategy of the Uri Party. Therefore, there is no validground for impeachment in this regard.

(6)Act interfering with free election by threatening the public

With respect to the ground for impeachment under this count, thereis no specific facts alleged in this regard, instead, the impeachmentresolution merely alleges that the respondent interfered with the public'sfree election by 'inducing support for a particular political party bythreatening the public and by repeatedly making statements affectingthe public's will concerning the general election.' There is no factualbasis to find that the respondent's statements concerning the electionhad a pervasive effect in the general community of public officialsthereby actually affecting negatively upon the neutralityof public offi-

cials at the election, that the executive organization of which therespondent is the chiefofficerintervenedin the election for a partic-

ular political party, or that the function of the election managementcommission was impeded upon. Nor is it plausible to deem that therespondent thereby interfered with or distorted the unbridled formationof the public's will concerning the election or interfered with thefree exercise of voting rights.

Therefore, the respondent's statements neither interfered with freeelection nor did such statements violate Article 237(1)(iii) of the PublicOfficials Election Act providing for the crime of interfering with theelection.

C.Acts at issue with respect to the obligation to abide by and protect the Constitution

(Articles 66(2) and 69 of the Constitution)

(1)The President's obligation to abide by and protect theConstitution

Article 66 of the Constitution, in Section 2, 'obligates'the Pres-

ident 'to protect the independence of the state, the preservation ofthe territorial integrity, the continuity of the state, and the nation'sConstitution,' and in Section 3

'obligates' the President 'to faithfullyendeavor for the peaceful reunification of the nation.' Article 69 ofthe Constitution obligates the President to take an oath of office,the content of which corresponds to such obligations. Article 69 ofthe Constitution not only sets forth the obligation of the Presidentto take an oath of office, but also functions as a substantive provisionspecifying and emphasizing the constitutional obligations of the Pres-

ident under Article 66(2) and Article 66(3) of the Constitution.

The 'obligation to abide by and protect the Constitution' of thePresident set forth in Articles 66(2) and 69 of the Constitution isthe constitutional manifestation that specifies the constitutional principleof government by therule oflaw in relation to the President's per-

formance of official duties. Expressed only in summary, the fundamentalelement of the principle of the rule of law, which is a basic constitu-

tional principle, is that any and all operation of the state shall be bythe 'Constitution' and the 'statutes' enacted by the legislature consistingof the representatives of the people and that any and all exercise ofthe state authority shall be the object of the judicial control in theform of administrative adjudication for the executive function andconstitutional adjudication for the legislative function. Accordingly,the legislature is bound by the constitution, and the executive andthe judicial branches of the government implementing and applyingthe law, respectively, are bound by the Constitution and the statutes.Therefore, the President, as the chief of the executive branch, is cons-

titutionally mandated to respect and abide by the constitution and thestatutes.

While the 'obligation to abide by and protect the Constitution'is a norm derived from the principle of government by the rule oflaw, the Constitution repeatedly emphasizes such obligation of thePresident in Articles 66(2) and 69, considering the significance ofthe status of the President as the head of the state and the chief ofthe executive branch. Under the spirit of the Constitution as such,the President is the 'symbolic existence personifying the rule of lawand the observance of law' toward the entire public. Accordingly,the President should not only make every possible effort to protectand realize the Constitution, but also abide by the law and performno act in violation of any of the valid law. Furthermore, the Presidentshould do all acts in order to implement the objective will of thelegislator. The obligation of the executive branch of the governmenttorespect and implement the law is equally applicable to the statutes thatthe executive branch deems unconstitutional. Since the ConstitutionalCourt alone is vested with the authority under the Constitution to removea statute that is unconstitutional, even if the executivebranch suspectsa particular statute to be unconstitutional, the executive branch shouldmake every possible effort to respect and implementthe law unlessanduntil the Constitutional Court holds such statute unconstitutional.

(2)Acts of the President to the National Election Commis-

sion'sdecision that the President violated the electionlaw

(A)Pursuant to the acknowledged facts, President Roh Moo-hyunstated through Lee Byung-wan, the Senior Secretary to the Presidentfor Public Information, on March 4, 2004, as the position of CheongWa Dae concerning the National Election Commission's decision warninghim of his undue intervention into the election that "I wouldlike tomake it clear that the decision of the National Election Commissionat this time is not convincing," "Now we should change both the insti-

tution and the custom under the standard of advanced democracy,""The election-related law of the past when the president mobilized... the state institutions should now be reformed rationally," and"The interpretation of the election law and the decision concerningthe election law should also be adjusted in conformity with suchdifferent culture surrounding the state authority and new trend ofthe time." Although the above stated position of Cheong Wa Daeon March 4, 2004 to the National Election Commission's decisionwas, internally, a position reached at a meeting of senior presidentialsecretaries, all of the positions of Cheong Wa Dae that are publiclyannounced revert, in principle, to the President. Particularly in thiscase, the acknowledged facts indicate that the Office of the Presidentreported the outcome of the meeting to the President and held thebriefing at issue upon the President's approval. Therefore, the abovestatements made by the Senior Secretary to the President for PublicInformation should be deemed as acts of the President himself. Thepurport of the above statements announced by the Senior Secretaryto the President for Public Information is that the President expressedunsatisfaction toward the National Election Commission's decisionand denigrated the current election law as the 'vestige of the era ofthe government-power-interfered elections.'

(B)The President's acts denigrating the current law as the 'vestigeof the era of the government-power-interfered elections' and publiclyquestioning the constitutionality and the legitimacy of the statute fromhisstatus as the President do not conform to the obligation to abideby and protect the Constitution and statutes. Should the Presidentsuspect theconstitutionality of a bill passed by the National Assem-

bly or suspect that such a bill can be improved, the President shouldask for reconsideration by returning such bill to the National Assembly(Article 53(2) of the Constitution), and should the President doubt theconstitutionality of a current statute, the President should performhisor her obligation to implement the Constitution by, for example, havingthe administration review the constitutionality of such statute andtherebyintroduce a bill to revisesuch statute or revising the statutein a constitutional manner through the support of the National Assembly(Article 52 of the Constitution).Even if the President suspects theconstitutionality of a statute, questioning the constitutionality of suchstatute itself in front of the nationalpublic constitutes a violation ofthe President's obligation to protect the Constitution. The President,of course, may express his or herown position and belief regardingthe direction for revising the current statutes as a political figure.However, it is of great importance that in which circumstances andin which relations such discussions on possible statutory revisionstake place. The President's statements denigrating the current electionstatutes by comparing them to the equivalent foreign legislationsas aresponse to and in the context ofthe National Election Commission'swarning for the violation of suchelection statutes cannot be deemedas an attitude respecting the law.

The statements as such made by the President, who should serveas a good example for all public officials, might have significantlynegative influence on the realization of a government by the rule oflaw, by gravely affecting the other public officials obligated to respectand abide by the law and, further, by lowering the public's awarenessto abide by the law. Namely, it cannot be denied that an obscureattitude or a reserved position of the President toward governmentby the rule of law gravely

affects the nation as a whole and the con-

stitutional order. When the President himself or herself fails to respectand abide by the law, no citizen, let alone no other public officials,can be demanded to abide by the law.

(C)To conclude, the act of the President questioning the legitimacyand the normative power of the current statute in front of the publicis against the principle of government by the rule of law and is inviolation of the obligation to protect the Constitution.

(3)Act of suggesting a confidence vote in the form of

a national referendum on October 13, 2003

Since the National Assembly's impeachment resolution specificallymentions the President's 'unconstitutional suggestion to havea confi-

dence referendum' with respect to its third stated groundfor impeach-

ment of 'unfaithful performance of official duties andreckless admin-

istration of state affairs' and the National Assembly further specifiedon this issue in its brief submitted subsequent to the initiation ofthe impeachment adjudication, we examine this issue as a subjectmatter of this impeachment adjudication.

(A)The President, during 'his speech' at the National Assemblyon October 13, 2003 'concerning the budget for fiscal year of 2004,'stated that "I announced last week that I would submit myself forpublic confidence. ... Although it is not a matter that I can determine,I think a national referendum is a correct way to do this. Althoughthere are disputes as to legal issues, I think it is feasible even underthe current law by interpreting the 'matters concerning national secu-

rity' more broadly, should there be a political agreement," therebysuggesting a confidence vote to be instituted in December of 2003.Debates concerning the constitutional permissibility of a confidencevote were thereby caused.Finally, such debates upon the constitu-

tionality of a confidence referendum reached the Constitutional Courtthrough a constitutional petition, but the Constitutional Court, in itsmajority opinion of five Justices in 2003Hun-Ma694 (issued on November27, 2003), dismissed such constitutional petition on the ground thatthe 'act of the President that is the subject matter of the case wasnot an act accompanying legal effect but an expression of a merepolitical plan, therefore did not constitute an exercise of governmentalpower.'

(B)Article 72 of the Constitution vests in the President the author-

ity to institute national referendum by providing that the "Presidentmay submit important policies relating to diplomacy, national defense,unification and other matters relating to the national destiny to a na-

tional referendum if he or she deems it necessary. Article 72 oftheConstitution connotes a danger that the President might use nationalreferendum as a political weapon and politically abuse such deviceby employing it to further legitimize his or her policy and to strength-

en his or her political position beyond as a mere means to confirmthe will of the public toward a specific policy, as the President monop-

olizes the discretionary authority to institute national referendumincluding the authority to decide whether to institute a nationalreferendum, its timing, and the specific agendas to be voted on andthe questions to be asked at the referendum, under Article 72 of theConstitution. Thus, Article 72 of the Constitution vesting withinthe President the authority to institute a national referendum shouldbe strictly and narrowly interpreted in order to prevent the politicalabuse of national referendum by the President.

(C)From this standpoint, the 'important policy matters' thatcan be subjected to

a national referendum under Article 72 of theConstitution do not include the 'trust of the public' in the President.

An election is for the 'decision on persons,' that is, an electionis to determine the representatives of the public as a premise tomake representative democracy possible. By contrast, the nationalreferendum is a means to realize direct democracy, and its object orsubject matter is the 'decision on issues,' that is, specific state policiesor legislative bills. Therefore,by the own nature of the national re-

ferendum, the 'confidence the public has in its representative' cannotbe a subject matter for a national referendum and thedecision ofand the confidence in the representative under our Constitution maybe performed and manifested solely through elections. The President'sattempt to reconfirm the public's trust in him that was obtainedthrough the past election in the form of a referendum constitutes anunconstitutional use of the institution of a national referendum providedin Article 72 of the Constitutionin a way not permitted by the Con-

stitution.

The Constitution does not permit the President to ask the public'strust in him by way of national referendum. The constitution furtherprohibits as an unconstitutional act the act of the President subjectinga specific policy to a referendum and linking the matter of confidencethereto. Of course, when the President institutes a referendum for aspecific policy and fails to obtain the consent of the public concerningthe implementation of such policy, the President may possibly resignby regarding such outcome aspublic's distrust in him or her. How-

ever, should the President submit a policy matter to a referendumand declare at the same time that "I shall regard the outcome of thereferendum as a confidence vote," this act will unduly influence thedecisionmaking of the public and employ the referendum as a meansto indirectly ask confidence in the President, therefore will exceedthe constitutional authority vested in the President. The Constitutiondoes not vest in the President the authority to ask the confidence inhim or her by the public through a national referendum, directly orindirectly.

(D) Furthermore, the Constitution does not permit a national confidencereferendum in any other form than the national referendum that isexpressly provided in the Constitution. This is also true even whena confidence referendum is demanded by the people as the sovereignor implemented under the name of the people. The people directlyexercise the state power by wayof theelection and the national refer-

endum, and the national referendum requires an express basis thereforwithin the Constitution as a means by which the people exercise thestate power. Therefore, national referendum cannot be grounded onsuch general constitutional principles as people's sovereignty or democ-

racy, and, instead, can only be permitted when there is a ground expressly provided in the Constitution.

(E)In conclusion, the President's suggestionto hold a national ref-

erendum on whether he should remain in office is an unconstitutionalexercise of the President's authority to institute a national referendumdelegated by Article 72 of the Constitution, and thus it is in violationof the constitutional obligation not to abuse the mechanism of thenational referendum as a political toolto fortify his own political po-

sition. Although the President merely suggested an unconstitutionalnational referendum for confidence vote and did not yet actually insti-

tute such referendum, the suggestion toward the public of a confidencevote by way of national referendum, which is not permitted underthe Constitution, is itself in violation of Article 72 of the Constitutionand not in conformity with thePresident's obligation to realize andprotect the Constitution.

(4)Act of disregarding the opinion of the National Assembly

Pursuant to the acknowledged facts, the President disregardedthe conclusion of the National Assembly appointment hearing heldon April 25, 2003 that Ko Young-gu was inappropriate for the positionas the Director of National Intelligence Service, and did not acceptimmediately the resolution of removal by the National Assembly ofSeptember 3, 2003 to dismiss the Minister of Government Administra-

tion and Home Affairs.

(A)The President possesses the authority to appoint and removethe members of the executive branch of the government under hisor her direction and supervision (Article 78 of the Constitution).Therefore, the appointment of the head of the Director of NationalIntelligence Service is part of the President's exclusive authorityand the President does not bear any obligation to accept the opinionconcluded at the appointment hearing at the National Assembly. Thus,the President did not violate the Constitution by impeding upon theauthority of the National Assembly or infringing upon the constitutionaldoctrine of separation of powers, in disregarding the decision of theNational Assembly's appointment hearing.

(B)Notwithstanding the authority of the National Assembly torecommend removal of the Prime Minister or other ministers of theadministration (Article 63 of the Constitution), such recommendationis a mere suggestion to remove such public official from office withno legally binding effect, and not the authority to determine the removalbinding the President thereto. The meaning of the 'authority torecommend removal from office' is that the President may be subjectto an indirect check and control by holding politically responsiblethePrime Ministeror other ministers of the administration serving the President's administration, instead of the President who may not beheld politically responsible during the presidential term. Aninterpretationunderstanding the authority to recommend removal of certain publicofficials of Article 63 of theConstitution as the authority to deter-

mine removal of such public officials does notconform to the consti-

tutional provision itself, nor can such interpretation be harmonizedwith the current constitutional separation of powers order that doesnot authorize the President to dissolve the National Assembly.

(C) In conclusion, the question of whether the President acceptsthe conclusion reached at the National Assembly appointment hearingor the National Assembly's recommendation to remove a certain publicofficial is a question of political reverence towards the decisionof theNational Assembly as the institution representing the public will, andnot one of a legal nature. Therefore, the acts of the President hereinwere the President's legitimate exercise of his authority within theseparation of powers structure under the Constitution, or were inconformity with constitutional norms, thus did not constitute acts inviolation of the Constitution or statutes.

(5) Remark disparaging the National Assembly, etc.

(A)Pursuant to the acknowledged facts, the President in hisopen letter to the public via the Internet dated May 8, 2003 statedthat "The farmer, when the time comes for weeding, roots out theweed from the field. ... certain politicians who fall to personal greedand interest and wrongful group selfishness ... certain politicianswho disregard the will of the majority of the public for reform andinstead hamper such reform effort and harm the future of the nation...."(note that the President, unlike theallegation of the impeaching peti-

tioner, did not describe the then incumbent members of the NationalAssembly as the 'weed to be rooted out') and described the movementat the National Assembly of March 8, 2004 to impeach the Presidentas 'unjust abuse of power.'

The above statements fall within the definition of the expressionof opinion toward

politics permitted to the President as the constitu-

tional institution of a political nature and, as such, were not in vio-

lation of the Constitution or statutes, apart from the possibility ofsuch statements serving as the ground for political criticism notwith-

standing.

(B)Although the impeaching petitioner alleges that the President,in his 'address commemorating the 85th anniversary of the March1st Independence Movement' of March 1, 2004, stated, concerning themove of the U.S. military base out of Yong-San, that "The symbolof interference, invasion, and dependence will return to thebosom ofthe citizens of the Republic of Korea as a true independent state," suchallegation was not included in the originalNational Assembly impeach-

ment resolution and is thus deemed to have been added subsequentto the National Assembly's resolution to impeachthe President. There-

fore, such allegation cannot properly be a subject matter in this im-

peachment adjudication.

D.Political power-based corruption involving the

President's intimate associates and aides

(1)Temporal scope of the proximity to the implementation

of official duties

Since Article 65(1) of theConstitution limits the ground for im-

peachment as arising out of the implementation of 'official duties'inproviding 'the President, ... , in the performance of the official duties,'the interpretation of the above provision urges that only certain actsviolating the law committed while the President was in the office ofthe President may constitute the ground for impeachment. Therefore,even those acts committed by the President between the time of electionand the time of inauguration do notconstitute the ground for impeach-

ment. Although the legal status duringthis period as the 'president-

elect' pursuant to the Act on Presidential Succession provides thepresident-elect with certainauthority to perform preparatory actsnec-

essary for the succession of the office of the president, such statusand authority of the president-elect is fundamentally different fromthe official duties of the Presidentand an act violating the law com-

mitted during this period by the president-elect such as receivingillegal political funds is subject to criminal prosecution. Therefore,there is no basis to adopt a different interpretation concerning theact of violation committed during this period in terms of the groundfor impeachment under the Constitution.

(2)Reception of illegal political funds concerning the Sun

&Moon Group and the presidential election camp

The alleged grounds for impeachment in this regard arose outof the facts that occurred prior to the respondent's inauguration asthe President on February 25, 2003, and are thus clearly irrelevantto the respondent's performance of official duties as the President.Therefore, such alleged grounds are invalid without further reviewingthe facts as to whether the respondent was involved in the receptionof such illegal funds.

(3)Corruption of the respondent's intimate associates and

aides

Among the alleged grounds for impeachment in this regard, thosebased on the facts that occurred after the president's inaugurationasPresident are that Choi Do-sul received 47 million Korean Won fromSamsung and others during his office as the General Affairs Secretaryfor the President, that Ahn Hee-jung received 1 billion Korean Wonof illegal fund from March through August of 2003, and the allega-

tions of Yeo Taek-su and Yang Gil-seung.

However,none of the evidence submitted throughout the proceed-

ings in this case supports the allegation that the respondent directedor abetted the above Choi Do-sul and others in receiving the illegalfunds or was otherwise illegally involved therein. Therefore, the allegedgrounds for impeachment premised on the above are meritless.

The rest of the alleged grounds for impeachment are based onfacts that occurred prior to the respondent's inauguration as Presidentand are thus clearly irrelevant to the respondent's performance of offi-

cial duties as President. Therefore, such alleged grounds are invalidwithout further reviewing the facts as to whether the respondent wasinvolved in the alleged reception of illegal funds.

(4) Publicly declaring retirement from politics

Pursuant to the acknowledged fact, the respondent publicly declared,at the party representative meeting at Cheong Wa Dae on December14,2003, that the respondent would retire from politics should the amountof illegal political funds received by his election camp exceed one-tenthof that received by the Grand National Party at the time of the pres-

idential election.

However, such statement was maderisking his political trustwor-

thiness facing a political situation and, as such, can hardly be deemedas a statement creating any legal obligation or responsibility. The ques-

tion of whether to keep such promise is merely a matter for politicaland moral judgment and responsibility on the part of the Presidentas a politician and cannot constitute an act of violating the Constitu-

tion or statutes in the President's performance of his official duties.

(5) Remark relating to the investigation by the prosecutors'

office

The alleged ground for impeachment contending that the respondentinterfered with and obstructed the investigation by the prosecutors'officeby, for example, making a statement at the year-end luncheonat Cheong Wa Dae on December 30, 2003 that "I would have beenable to twice grindup the prosecution had I meant to kill the prose-

cution, but I did not." However, this allegation was not included inthe National Assembly's original impeachment resolution and is thusdeemed to have been added subsequently, therefore it cannot be asubject matter in this impeachment adjudication.

E. Political chaos and economic collapse caused by

unfaithful performance of official duties and reckless

administration of state affairs

(1)The ground for impeachment in this regard is that the respon-

dent, since his inauguration as President to date, has created extremehardship and

pain on the entire citizenry by breaking down thenational economy and the state administration, allegedly caused bythe President's unfaithful performance of official duties and recklessadministration of state affairs lacking any sincerity or consistency,such as the President's repeatedly improper statements, expression ofananti-war position following the declaration to dispatch military toIraq, proposition of an unconstitutional confidence referendum, anddeclaration to retire from politics, and unjust acts such as an illegalelectoral campaign pouring all his efforts into the general electionprior to the permitted time period therefor. It is alleged that therespondent thereby impeded the right to pursue happiness of the publicunder Article 10 of the Constitution and violated his 'obligation tofaithfully perform official duties as president' as expressly providedunder Article 69 of the Constitution.

As various statistical indicators relating to the 'economic break-

down' are presented in this case, although it is true that householddebt increased, the unemployment rate among younger generations grew,and the state debt increased in the past year, it would be irrationalto hold the respondent entirely responsible for such economic aggra-

vation. Also, there is no evidence in this case that would otherwisesupport a judgment that the economy of the nation fell to an irrecov-

erable state or that the administration of state affairs was brokendown.

(2)Article 69 of the Constitution stipulates the 'obligation tofaithfully perform the official duties' as President while it provides forthe oath of office for the President. As stated previously, Article69 isnot a provision that merely obligates the President to take the oath ofoffice, but is a provision that reemphasizes and specifies the obligationmandated by the Constitution in Articles 66(2) and 66(3) for the officeof presidency by expressively setting forth the content of such oath ofoffice.

Although the 'obligation to faithfully perform the official duties'of the President is a constitutional obligation, this obligation, by itsown nature, is, unlike the 'obligation to protect the Constitution,'not the one the performance of which can be normatively enforced.As such, as a matter of principle, this obligation cannot be a subjectmatter for a judicial adjudication.Whether the President has faith-

fully performed his official duties may become the object of the judgment by the public at the next regularly held election. However, under thecurrent Constitution that limits the presidential term to a single term,there is no means to hold the President directly responsible, evenpolitically, let alone legally, toward the public and the President'sfaithfulness or unfaithfulness in performing his or her official dutiesmay only be politically reflected favorably or unfavorably on the rulingparty of which the President is a member.

As Article 65(1) of theConstitution limits the ground for impeach-

ment to the 'violation of theConstitution or statutes' andthe impeach-

ment adjudication process at the Constitutional Court is solely todetermine the existence or the nonexistence of aground for impeach-

ment from a legal standpoint, the ground for impeachment allegedby the petitioner in this case concerning the respondent's faithfulnessof the performance of the official duties such as the political incapabilityor the mistake in policy decisions, cannot in and by itself constitutea ground for impeachment and therefore it is not a subject matterfor an impeachment adjudication.

F. Sub-conclusion

(1)The President's statements at the press conference with sixnews media organizations in the Seoul-Incheon region on February18, 2004 and the statements at the press conference with the KoreanNetwork Reporters' Club on February 24, 2004 were in violation ofthe neutrality obligation owed by public officials provided in Article

9 of the Public Officials Election Act.

(2)The act of the President in response to the National ElectionCommission's March 4, 2004 decision that found a breach of electionlaw by the President was in violation of the President's obligationto protect the Constitution as not in conformity with the principle ofthe rule of law. The act of the President on October 13, 2003 thatproposed a confidence referendum violated the obligation to protect theConstitution as not in conformity with Article 72 of the Constitution.

6. Whether to remove the respondent from office

A.Interpretation of Article 53(1) of the Constitutional

Court Act

Article 65(4) of the Constitution provides that the "effect of thedecision of impeachment is limited to the removal of the public officialfrom office," and Article 53(1) of the Constitutional Court Act providesthat the "Constitutional Court shall issue a decision removing thepublic official from office when there is a valid ground for the petitionfor impeachment adjudication." Here, the issue is how to interpret thephrase of "when there is a valid ground for the petition for impeach-

ment adjudication."

One possible literal interpretation is that Article 53(1) of theConstitutional Court Act provides that the Constitutional Court shallautomatically issue a decision removing the public official from officeas long as there is any valid ground for impeachment set forth inArticle 65(1) of the Constitution. However, under such interpretation,the Constitutional Court is bound to order removal from public officeupon finding any act of the respondent in violation of law withoutregard to the gravity of illegality. Should the respondent be removedfrom hisoffice for any and all miscellaneous violations of law com-

mitted in the course of performing his official duties, this would beagainst the principle of proportionality that requests constitutionalpunishment that corresponds to the responsibility given to the respon-

dent. Therefore, the existence of the 'valid ground for the petitionfor impeachment adjudication' in Article 53(1) of the ConstitutionalCourt Act means the existence of a 'grave' violation of law sufficientto justify removal of a public official from his or her office and notmerely any violation of law.

B. Standard to be adopted in judging the 'gravity

of violations'

(1)The question of whether there was a 'grave violation of law'

or whether the 'removal is justifiable' cannot be conceived by itself.Thus, whether or not to remove a public official from office shouldbe determined by balancing the 'gravity of the violation oflaw' bythe public official against the 'impact of the decision to remove.' Asthe essential nature of the impeachment adjudication process lies inthe protection and the preservation of the Constitution,the 'gravityof the violation of law' means the 'gravity in terms of the protection

of the constitutional order.' Therefore, the existence of a valid ground

for the petition for impeachment adjudication, that is, the removalfrom office, should be determined by balancing the 'degree of thenegative impact on or the harm to the constitutional order causedby the violation of law' and the 'effect to be caused by the removalof the respondent from office.'

(2) The President is in an extremely significant status as thehead of the state and the chief of the executive branch (Article 66of the Constitution). Also, the President is an institution representingthe public will directly vested with the democratic legitimacy in thatthe President is elected through a national election (Article 67 of theConstitution). In these regards, there is a fundamental difference inpolitical function and weight between the President and other publicofficials subject to impeachment. This difference is exhibited as afundamental discrepancy in the 'impact of the removal.'

A decision to remove the President from office would deprivethe 'democratic legitimacy' delegated to the President by the nationalconstituents through an election during the term of the office andmay cause political chaos arising from the disruption of the opinionsamong the people, that is, the disruption and the antagonism betweenthose who support the President and those who do not, let alone anational loss and an interruption in state affairs from the discontinuityof the performance of presidential duties. Therefore, in the case ofthe President, the 'directly delegated democratic legitimacy' vestedthrough a national election and the 'public interest in continuity ofperformance of presidential duties' should be considered as importantelements in determining whether to remove the President from office.Therefore in light of the gravity of the effect to be caused by theremoval of the President from office, the ground to justify a decisionof removal should also possess corresponding gravity.

As a result, a grave violation of law is required for a decisionto remove the President from office that can overwhelmingly outweighthe extremely significant impact of such decision of removal,whereaseven a relatively minor violation of law may justify the removal fromoffice of public officials other than the President as the impact ofremoval is generally light.

(3)Although it is very difficult to provide in general termswhich should constitute a 'grave violation of law sufficient to justifythe removal of the President from office,' that the impeachmentadju-

dication process is a system designed to protect the Constitutionfrom the abuse of public officials' power on one hand and that thedecision of removal of the President from office would deprive thepublic's trust vested in the President on the other hand, can be pre-

sented as important standards. That is, on one hand, from thestandpoint that the impeachment adjudication process is a procedureultimately dedicated to the protection of the Constitution, a decisionto remove the President from office may be justified only when thePresident's act of violating law has a significant meaning in termsof the protection of the Constitution to the extent that it is requestedto protect the constitution and restore the impaired constitutional orderby a decision of removal. On the other hand, from the standpointthat the President is an institution representing the public's will directlyvested with democratic legitimacy through election, a valid groundfor impeaching the President can be found only when the Presidenthas lost the public's trust by the act of violation of law to the extentthat such public trust vested in the President should be forfeitedwhilethe presidential term still remains.

Specifically, the essential contentof the constitutional order ulti-

mately protected by the impeachment adjudication process, that is,the 'basic order of free democracy' is constituted of the basic elementsof the principle of government by the rule of law which are 'respectfor basic human rights, the separation of powers, and the independenceof the judiciary,' and of the basic elements of the principle of democ-

racy which include 'the parliamentary system, the multi-party system,and the electoral system' (2 KCCR 49, 64, 89Hun-Ka113, April 2,1990). Accordingly, a 'violation of law significant from the stand-

point of protection of the Constitution' requiring the removal of thePresident from

office means an act threatening the basic order of freedemocracy that is an affirmative act against the fundamental principlesconstituting the principles of the rule of law and a democratic state.An 'act of betrayal of the public's trust' is inclusive of other patternsof act than a 'violation of law significant from the standpoint of pro-

tection of the Constitution,' and, as such, typical examples thereofinclude bribery, corruption and an act manifestly prejudicing stateinterest, besides an act threatening the basic order of free democracy.

Therefore, for example, in case of the President's act of corrup-

tion by abuse of power and status given by the Constitutionsuch asbribery and embezzlement of public funds, the President's act manifestly

prejudicing state interest despite the President's obligation to implement

public interest, the President's act of impeding upon theauthority vest-

ed in other constitutional institutions such as the NationalAssembly by

abuse of power, the President's act of infringinguponthe fundamentalrights of the public such as oppression of the citizenryby way of stateorganizations, or the President's act of an illegalelectoral campaignor fabricating the election by using the state organizations in elections,

it may be concluded that the President can no longer be entrustedto implement state affairs since the President has lost the trust ofthe public that the President will protect the basic order of free democracy and faithfully implement state administration.

In conclusion, a decision to remove the President from his orher office shall be justified in such limited circumstances as wherethe maintenance of the presidential office can no longer be permittedfrom the standpoint of the protection of the Constitution, or wherethe President has lost the qualifications to administrate state affairsby betraying the trust of the people.

C. Whether to remove the President from office in

this case

(1) Summary of the violation of law by the President

As confirmed above, the acts of violation of law by the Presidentat issue in this case can becategorized into the violation ofthe 'obli-

gation to maintain neutrality' concerning elections owed by publicofficials by making statements in support of a particular political partyat press conferences, and the violation of the obligation to protecttheConstitution owed by the President against the principle of rule oflaw and Article 72 of the Constitution by expressing unsatisfactiontowards the National Election Commission's decision that the Presidentviolated the election law and making statements denigrating the currentelection law and by proposing a confidence referendum.

(2) Gravity of the violation of law

(A)The President violated the 'obligation to maintain neutralityconcerning elections' by making statementssupporting a particularpolitical party, thereby infringing the constitutional request that thestate institution should not affect the process through which the publicfreely forms the opinion or distort the competitive relations amongthe political parties.

However, such acts by the President do not constitute affirmativeacts of violation against the 'parliamentary system' or 'electoralsystem' constituting basic order of free democracy and, accordingly,it cannot be deemed that the negative impact of the acts in violationof the Public Officials Election Act upon the constitutional order wasgrave, considering that the above acts of violation of the Presidentwere not

committed in any affirmative, active or premeditated wayby,for example, attempting to have administrative authority intervenethrough state organization. Instead, they took place in a way thatwas unaggressive, passive, and incidental, during the course of expres-

sing the president's political belief or policy design in the form of aresponse to the question posed by the reporters at the press conference.It should also be considered that the boundary between the 'expressionof opinion toward politics' constitutionally permissible for the Presidentwho is allowed to do political and party activities and the impermissible'acts of violating neutrality obligation concerning elections' is blurredand there has not been any established clear legal interpretation asto 'in which circumstances it is beyond the scope of political activitiespermitted for the President with respect to elections.'

(B)The President's statement and act that causes suspicion tothe President's willingness to abide by law, even if minor, may greatlyaffect the legal conscientiousness and the observance of the law ofthe public. Thus, the President's statement disrespectful of the currentelection law cannot be deemed as a minor violation of law on thepart of the President who bears an obligation to make all the effortsto respect and implement the law.

However, the statement of the President denigrating the currentelection law as the 'vestige of the era of government-power- interferedelection' does not constitute an affirmative violation of the currentlaw. Instead, such statement is an act of violation of law committedduring the course of reacting, in an unaggressive and passive way,towards the decision of the National Election Commission. ThePresident,of course, may well deserve criticism as such statement wasan expression of disrespectfulness toward the current law, thereforeitwas in violation of the President's obligation to protect the Constitution.However, considering the totality of the specific circumstance where suchstatement was made, such statement was made with no affirmativeintent to stand against the basic order of free democracy, nor was itan act of grave violation of law fundamentally questioning the prin-

ciple of the rule of law.

(C) The acts of the President intending to seek sanctuary indirect democracy through directly appealing to the public by proposinga confidence referendum in the state of minority ruling party and majority opposing party rather than administering state affairs inconformity with the spirit of the presidential system and parliamentarysystem of the Constitution, were not only in violation of Article 72of the Constitution, but also against the principle of the rule of law.

Also, however, in this regard, the above acts of the President didnot constitute an affirmative violation of law against the fundamentalrules of the Constitution forming the principle of democracy and accord-

ingly, there was no grave negative impact upon the constitutional order,considering that the President merely proposed an unconstitutionalconfidence referendum and did not attempt to enforce such and thatthe interpretation as to whether the 'important policy concerningnationalsecurity' of Article 72 of the Constitution includes the issueof confidence in the President has been subject to academic debates.

(3) Sub-conclusion

(A)To conclude, reviewing the totality of the impact the violationof law by the President has upon the constitutional order, specificacts of violation of law by the President cannot be deemed as athreat to thebasic orderof freedemocracy since there was no affir-

mative intent to stand against the constitutional order therein.

Therefore, since the act of violation of law by the President does not have a

significant meaning in terms of the protection of the Constitution to the extent that it is requested to protect theConstitution and restore the impaired constitutional order by removingthe President from office and, also, since such violation of law by the President cannot be deemed to evidence the betrayal of publictrust on the part of the President to the extent that the public trustvested in the President should be deprived of prior to the completionof the remaining presidential term, there is no valid ground justifyingremoval of the President from office.

(B)The power and political authority of the President is vestedby the Constitution and a president who disrespects the Constitutiondenies and destroys his or her own power and authority. Especially,the importance of a resolute position of the President to protect theConstitution cannot be emphasized enough in today's situation wherethe constitutional awareness among the public has just begun to sproutin a brief history of democracy and the respect for the Constitutionhasyet to be firmly established in the consciousness of the general public.As the 'symbolic existence of the rule of law and the observance oflaw,' the President should make the best effort in order to realizethe rule of law and ultimately protect the basic order of free democracyby, not only respecting and abiding by the Constitution and statutes,but also taking a decisive stand toward unconstitutional or unlawfulacts on the part of other state institutions or the general public.

7. Conclusion

A.The petition for impeachment adjudication is hereby rejectedas the number of the Justices required to remove the President fromoffice under Article 23(2) of the Constitutional Court Act has notbeen met. It is so ordered, pursuant to Articles 34(1) and 36(3) ofthe Constitutional Court Act.

B. Article 34(1) of the Constitutional Court Act provides thatthe deliberation at the Constitutional Court shall not be disclosed tothe public, whereas the oral argument and the pronouncement of thedecision shall be disclosed. Here, non-disclosure of the deliberationby the Constitutional Court Justices means that neither the separateopinions of the individual Justices nor thenumbers thereof shallbedisclosed, as well as the course of the deliberation. Therefore,the opinions of the individualJustices may be noted in the decisiononly when a special provision permits an exception to such secretdeliberation procedure. While there is such special provision permittingan exception to the secrecy of deliberation in Article 36(3) of theConstitutional Court Actapplicable to the proceedings ofconstitution-

al review of a law, competency dispute among state institutions, andconstitutional petition, there is no provision permitting exception tothe secrecy of deliberation with respect to the impeachment adjudication.Therefore, in this impeachment adjudication, the separate opinions ofthe individual Justices or the numbers thereof may not be pronouncedin the decision.

It should be noted that, concerning the above position, therewas also a position that separate opinions may be pronounced anddisclosed in the decision, interpreting Article 34(1) of the ConstitutionalCourt Act as a provision merely providing for non-disclosureof thedeliberative proceedings in that only the external proceeding or thecontent of the opinions exchanged therein to reach the conclusionshould not be disclosed andthe final opinion of the individualpartici-

pating Justices reached through such deliberative process may bedisclosed, and interpreting Article 36(3) of the Constitutional CourtAct as a provision permitting disclosure of separate opinions sincesuch provision is based on the consideration to prevent the problemof indiscriminately mandating disclosure of separate opinions whereit is improper to disclose separate opinions in impeachment adjudicationor political

party resolution proceeding, thus leaving the decision todisclose separate opinions in impeachment adjudication to the discretionof the participating Justices.

Justices Yun Young-chul (Presiding Justice), Kim Young-il, Kwon Seong, Kim Hyo-jong, Kim Kyung-il, Song In-jun, ChooSun-hoe (Assigned Justice), Jeon Hyo-sook, and Lee, Sang-kyung

Appendix 1. List of Counsel representing Petitioner: Omitted.

Appendix 2. List of Counsel representing Respondent: Omitted.

Appendix 3. National Assembly's Impeachment Resolution: Omitted.

---------------------------------

Aftermath of the Case5)

By its decision on May 14,2004 to reject the petition for impeach-

ment adjudication, the Constitutional Court brought an end to thepolitical and legal debates for and against the impeachment of thePresident that lasted for over two months, and President Roh Moo-hyunthereby returned to his office in sixty-three days from suspensionof presidential authority and power.

Through this case, the public newly recognized that even thePresident is subject to possible removal from office for violating theConstitution and statutes, and yet, the removal process should alsoproceed pursuant to the Constitution and statutes. In this regard, itis the analysis within thelegal profession that the 'impeachmentadju-

dication of the President served as a precious opportunity for the public to learn the importance of the rule of law and democracy.'

The Constitutional Court's decision in this case mainly receivedpositive review throughout the media as the 'decision committed toboth the spirit of the Constitution and the will of the public reflectingthe Court's completed mission as the final bulwark of the Constitution,'and the 'historic decision that set a new landmark of constitutionalismand the rule of law.' The announcement of the decision in this case was televised nationwide by live broadcasting.