Preliminary Injunction In Impeachment Trial

Assembly has the right to recommend dismissal of cabinet member to President according to Korean Constitution §63⓵. Regrettably, Constitutional court does not admit that president need to follow assembly’s recommendation. In addition, the assembly has the right to file a impeachment resolution of high degree government officials including President, judge, prosecutor, and the official that it regulates in legislation During President Yoon government period(2022.4.-2025.5.), the assembly impeached about 40 government officials(mostly high degree government officials, and prosecutors) for the breach of constitution and law in the middle of duty execution. These impeachments caused the Yoon government almost shut down or in a vegetative state. Generally speaking, Korean government system does not belongs to parliament system but president system. Assembly and President is separately constituted and survived. Yet, right after assembly decide a impeachment resolution, the impeached cannot exercise the power he/she has any more according to constitution §65⓷. Of course, the constitution recognize the presumed innocent principle §27⓸. In the course of political struggle, assembly besieged by opposite party(not president side) have used this automatic authority halt regulation through impeachment resolution to paralyze the government(president) by the majority agreement of assembly. I think that this automatic authority halt(AAH) regulation should be deleted in constitution. Instead, through legislation(constitutional law) constitutional court who has the power of impeachment decision should be able to exert the power of it like in 1948 constitution. Before constitutional revision, I think AAH regulation should be narrowly interpreted: AAH is effective until the impeachment case is pended on constitutional court right after assembly submits the written impeachment demand for trial to constitutional court. After constitutional court has the case, it can give the impeached a preliminary rescue(injunction) by stopping the effect of AAH until final decision. I assert that this interpretation does not contradict the constitution but harmonize the AAH and constitutional court’s power that the constitution grants to it.