Will President Yoon Suk Yeol be punished?

■ Will President Yoon Suk Yeol be punished?

Regardless of how politically shaken hands the December 3 emergency martial law was, the declaration of martial law itself is not unconstitutional, although it implies procedural illegality in the process after the declaration of martial law. This is because the deliberation of the State Council was conducted formally, and each State Council member has no authority to approve or oppose martial law. In addition, even if there are some unconstitutional and illegal factors, such as failure to notify the National Assembly without delay or the introduction of martial law troops into the National Assembly, it would be difficult to convict and cite civil war. It was written by an outside of the law, so please consider it.

First of all, the exercise of the president's emergency powers in the event of a national emergency requires a balance between urgency and constitutional legitimacy. Emergency powers exist for quick and efficient responses in situations that immediately threaten the existence of the state and the lives of the people. These emergency powers include emergency legislative power, emergency order power, and martial law declaration power. In other words, discretion is given to the president to make immediate judgments and actions when using emergency powers. Naturally, the president's emergency powers should be exercised in extremely limited and exceptional cases when inevitable, and should be limited to the minimum necessary to fulfill the responsibilities of national independence, territorial integrity, national continuity, and constitution protection.

The problem arises when the president uses or misuses emergency powers to strengthen his power. The former can be cited as an example of emergency measures (emergency powers) under the Yushin regime, and the latter can be cited as 12·3 martial law. However, it is practically impossible to receive court judgment in advance whenever an emergency occurs. This does not fit the purpose of the emergency powers that should be used in national emergency situations. Of course, if the president's exercise of emergency powers is unlimited, the risk of abuse of authority and constitutional violations can increase.

To solve this problem, most constitutional systems adopt a post-verification and accountability system instead of a prior judgment. Post-verification is an essential procedure, which is a necessary compromise to balance quick response in urgent situations and constitutional control. In other words, the president can autonomously determine whether the current situation is an emergency and respond quickly. And after the emergency is over, the judiciary and legislature review the president's judgments and measures to determine constitutional legitimacy, and if the exercise of emergency powers does not meet constitutional requirements, the president must be politically responsible.

Whether or not the declaration of martial law itself is unconstitutional is determined by who is the subject of the judgment of the 'national emergency' referred to in the Constitution and martial law law. The 'national emergency' in Article 77 (1) of the Constitution of the Republic of Korea and Article 2 (2) of the Martial Law has not been explicitly defined by the current Constitution and laws regarding the seriousness of the situation or the level of change in the phenomenon. In other words, it is entirely up to the President to determine whether there is an emergency, which is one of the requirements for declaring an emergency. Even if the President declared martial law by making a mistake by thinking that was far from the public's idea, it would be unfair for the President to take political responsibility for the decision, and to take legal responsibility because the majority think it is not an 'emergency'.

According to the existing precedents related to the national emergency, it is described as if the president is not the subject of the judgment of the emergency. In July 2013, 'state offenders' who were indicted and served time for violating emergency measures were acquitted one after another. The judge's 'authoritative judgment' on the emergency measures used in the ruling at the time was "clearly aimed at suppressing public resistance to the restoration system," adding, "The right to national emergency must be exercised to the minimum extent that is indispensable when the state is in a serious crisis, but the situation at the time of emergency measures being issued cannot be said to be a serious crisis of the state as an emergency, so it lacks the requirements prescribed by the Constitution itself."

Coincidentally, the presiding judge of the above judgment is Jeong Hyeong-sik, who is currently serving as a judge of the Constitutional Court, and is the chief judge of the impeachment trial of President Yoon Suk Yeol. He is known to be conservative, but the above ruling, which was made when he was a senior judge at the Seoul High Court, stated that the situation in which emergency measures would be issued in the Yushin regime did not satisfy the emergency requirements. This is a case where the court verified the judgment of whether the actual situation was an emergency mentioned above after the fact. If so, should the president be held legally responsible when it is concluded that it is not an emergency after the fact?

I don't think so. The gist of the judgment introduced above concerns the justification of the consequences of the emergency judgment. In other words, it pointed out that the emergency requirements that the President could have issued emergency measures were not met by the Constitution because the circumstances were not reasonable, and it can be seen that it corrects the wrong trial for crime under the circumstances and clarifies the unconstitutionality of emergency measures. This is not intended to impose legal responsibility on the President. It is just a legal treatment of the specific consequences and damages caused by the judgment rather than the judgment of the President itself.

In light of the two cases of impeachment before President Yoon Suk Yeol, the presidential impeachment at the National Assembly is regarded as a political process that aims to undermine the president's political power rather than take issue with the president's grave violations of the law. As a result, many expect impeachment to be cited in that regard because there is a considerable view of the impeachment trial as a de facto political trial. However, impeachment is not just a political complaint, but must have a clear violation of the Constitution and laws, and in accordance with Article 65 (1) of the Constitution, the National Assembly can vote on the impeachment if the president violates the Constitution or laws.

Due to the martial law of December 3, the President of Yoon Suk Yeol was impeached, and the situation is under the Constitutional Court's impeachment trial. Although the reasons for impeachment of the president under the Constitution of the Republic of Korea are not specified in detail, five items are generally presented as reasons for impeachment: violation of the Constitution, violation of the law, abuse of authority, violation of duty to perform duties, violation of national existence and order. In the light of the 12·3 martial law, violations of the Constitution (violation of basic rights, etc.), violation of the law (abuse of authority, etc.), abuse of authority (extraordinary authority, etc.)