Case on the Ipso Facto Retirement of Public Officials Who Have Received Suspended Sentences

[14-2 KCCR 219, 2001Hun-Ma788 et al., August 29, 2002]

1.A. Background of the Case

In this case, the Court decided that the provision of the Local Public Officials Act that prescribed theipso factoretirement of public officials who received a suspended sentence of a punishment equal to or heavier than imprisonment without labor violated the Constitution.

The complainants were local public officials who had been charged for preparing and executing false documents, or for violating the Act on the Aggravated Punishment, etc. of Specific Crimes (hit-and-run vehicle), who had all received suspended sentences of six months of imprisonment with labor and whose sentences had been finalized.

The complainants filed constitutional complaints on the grounds that the aforementioned provision of the Local Public Officials Act (hereinafter referred to as the “Ipso Facto Retirement Provision”) infringed upon their right to hold public office.

The Court had previously upheld a Local Public Officials Act provision prescribing the same content as above in 89Hun-Ma220, decided on June 25, 1990.

2.B. Summary of the Decision

The Court held that the Ipso Facto Retirement Provision was unconstitutional for infringing upon the right to hold public office, for the following reasons.

The suspension of the imposition of a sentence is used for offenders that have committed minor crimes, by suspending the sentence for a certain period and deeming the suspension to be acquitted after a certain period (two years) has elapsed. The purpose of this specific deterrence measure is to facilitate the future rehabilitation of the defendant by providing the opportunity to avoid being tainted by punishment.

The right to hold public office guaranteed by Article 25 of the Constitution means the right to fulfill one’s duty as a member of a public organization, and includes protection from the arbitrary exclusion of opportunities to assume public office, as well as protection from an unreasonable deprivation of the status as a public official.

Even in cases where a public official has received a punishment equal to or heavier than imprisonment without labor, the type or specific details of the crime would vary to a great extent. As such, the impact of such crime on the trust of the people in public officials would also differ. Therefore, in protecting the confidence of the people in public officials, the legislature should have limited, to the extent possible, the type or content of crime that would require the ipso facto retirement of a public official.

Regardless, the Ipso Facto Retirement Provision applies to all crimes that have received a suspended sentence equal to or heavier than imprisonment without labor, and even fails to exclude negligent offenders such as those who have committed offences relating to traffic accidents, which in the present day could be committed by anyone.

It is true that public officials are servants of all citizens and must be subject to high standards of integrity for the fair execution of public duties. However, the Ipso Facto Retirement provision automatically forces public officials to resign from their positions even for minor offences unrelated to their duties, placing an excessive focus on public interest.

Thus, the Ipso Facto Retirement provision infringes upon the right to hold public office guaranteed by Article 25 of the Constitution.

Justice Han Dae-Hyun dissented, as follows. The purpose of the Ipso Facto Retirement Provision is to protect the people’s trust in public officials, a legitimate public interest, and the disadvantage imposed on the status of public officials is reasonably balanced with the public interest to be protected. Therefore, the Ipso Facto Retirement Provision does not violate the Constitution.

3.C. Aftermath of the Case

Thereafter, the Constitutional Court delivered decisions of unconstitutionality for the provisions of the State Public Officials Act and the Military Personnel Management Act regardingipso factoretirement (2002Hun-Ma684 et al., October 30, 2003; 2003Hun-Ma293 et al., September 25, 2003).

Meanwhile, the National Assembly amended the Local Public Officials Act by Act No. 6786 on December 18, 2002. The revised Act stated in the proviso of Article 61 that grounds for disqualification as a public official were grounds foripso factoretirement, but excluded persons under the period of a suspended sentence of a punishment equal to or heavier than imprisonment without labor, from grounds for disqualification. However, in the amendment by Act No. 10147 on March 22, 2010, the Local Public Officials Act prescribed that even in cases where one had received a suspended sentence equal to or heavier than imprisonment without labor, those that had committed crimes listed from Article 129 through Article 132 of the Criminal Act (crimes related to bribery), and crimes listed under Articles 355 and 356 of the Criminal Act (embezzlement,

breach of trust) in connection with his or her duties, would be subject to automatic resignation (proviso to Article 61). Then, in the amendment by Act No. 13634 on December 29, 2015, suspended sentences for the crimes of sexual intercourse or indecent acts by abuse of occupational authority, etc. (Article 303 of the Criminal Act, Article 10 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes) were also added as grounds foripso factoretirement.

As a result of amendments similar to those made above to the Local Public Officials Act, the State Public Officials Act also prescribes provisions with the same content (first proviso to Article 69).

Following the unconstitutionality decision for 2003Hun-Ma293 et al., mentioned above, through an amendment by Act No. 7085 on January 20, 2004, the Military Personnel Management Act, which had required a person who received a suspended sentence of the suspension of qualification or a heavier punishment to retireipso facto, excluded this from the grounds foripso factoretirement. However, in the amendment by Act No. 12747 on June 11, 2014, those who had received a suspended sentence of suspension of qualification or a heavier punishment and committed a crime under Articles 129 through 132 of the Criminal Act or under Articles 355 or 356 of the same Act in connection with his or her duties once again became subject toipso factoretirement (proviso to Article 40 Section 1 Item 4).