대통령에 대한 탄핵심판 = 헌재 2004. 5. 14. 2004헌나1 사건의 주요쟁점을 중심으로

다국어 초록 (Multilingual Abstract)

On May 15, 2004, the Constitutional Court ruled that while President Roh Moo-hyun had violated election laws, that was insufficient ground for his impeachment. The court said that Mr. Roh had violated Article 9 of the Act on the Election of Public Officials and the Prevention of Election Malpractices on two occasions in February 2004. The article compels both elected and career government employees to maintain political neutrality. The Constitutional Court decided that the president had violated Articles 66 and 69 of the Constitution by expressing regret over the National Election Commission's warning to him. The two articles stipulate that a president should abide by and uphold the Constitution. The Court said the third violation was Mr. Roh's Oct. 13 proposal for a national referendum on his presidency, interpreting Article 72 of the Constitution as stipulating that a national referendum can be held only on important policy issues involving foreign affairs, defense and reunification. The court dismissed two other charges: implication of Mr. Roh's aides in corruption cases, and economic mismanagement.
I think that the Court's ruling does not have persuasive argument in that following points of view.
First, is the president a civil servant who falls into the category of civil servants-who need to be politically neutral as defined in the act? The president is the head of the executive branch and hence bears the responsibility of stable policy fulfillment. In order to execute this kind of responsibility, the president, as a political civil servant, needs the support of legislative majority. Hence the president can give his support to a specific political party and ask for support from the people to get legislative majority by expressing his political opinion.
Second, the Constitutional Court sentenced that the president's reaction to the National Election Commission ruling on the violation of election laws was not in line with his duty to abide by the Constitution and election law. But even if his remark was intended to express his discontent over the National Election Commission ruling, it is just expression of his political opinion on the possibility of new interpretation of election laws and on the direction of an amendment of current laws. Thus his remark is neither against the principles of law-governed country nor a violation of his duty to protect the Constitution.
Third, article 72 of the Constitution states, “The president can put issues related to national security such as diplomatic, defense and unification issues to a national referendum if necessary.” A national referendum applies to making decisions on specific national policies. Thus, a national referendum for confidence vote cannot be regarded as issues related to national security. It means that the president is not endowed with exercising the power to call a national referendum for confidence vote. But the president only suggested a national referendum and did not enforce it. Making the suggestion itself is not against the Constitution until making an announcement of a national referendum for confidence vote and of the date of a national referendum.

목차 (Table of Contents)

• Ⅰ. 서론
• Ⅱ. 탄핵제도의 본질과 기능 및 탄핵사유
• Ⅲ. 대통령의 행위가 헌법이나 법률에 위배되는지 여부
• Ⅳ. 결론
• 〈Abstract〉