법관에 대한 탄핵심판 - 임기의 만료와 심판의 이익, 헌재 2021. 10. 28. 2021헌나1 사건을 중심으로 - = The Impeachment of Judges - A Study on the Relationship between the Expiration of Term of Office and Interests of Impeachment Trial -

다국어 초록 (Multilingual Abstract)

The Constitutional Court dismissed the Nat i onal Assembly’s impeachment of a judge. The opinion of five judges of the Constitutional Court, a majority of the ni ne judges, agreed that the adjudication of impeachment should be dismissed as the respondent’s term of office expired during the impeachment trial. The maj ori t y opinion misunderstood the me ani ng and history of Article 65 (4) of the Constitution and judged that the purpose of the impeachment trial was only to remove the respondent from public office. In addition, the significance, nature, and basis we r e misunderstood in that the impeachment trial was to be distinguished from other constitutional trials through the me di um of the ‘binding power’. Al so, it did not take into account the organic interrelationship between the judge’s term system and the impeachment trial.
The purpose of the impeachment trial is to protect the constitutional order in a trial form. The fact that was an issue in this case violates the independence of judges through the involvement of the trial, whi ch is an important value that forms the core of our constitutional order. In particular, since the issue of independence infringement of judges has occurred repeatedly in our constitutional history and no specific claims and explanations have been made on normative boundaries, the interests of the trial must be admitted at least to confirm the unconstitutionality of the respondent’s actions. Furt hermor e, it is possible to examine the possibility of removing publ ic officials whose terms of office have expired whi l e the impeachment trial continues. In the United States, most scholars understand that Congress has the power to impeach a former public official, and the Texas Supreme Court judged that the purpose of the constitutional provision ma y not be thwarted by a resignation. In Ger many, Ar t i cl e 51 of the Feder al Constitutional Court Act stipulates that the impeachment procedure of the federal president is not affected by the president’s resignation and retirement. Therefore, even according to the theory of interpretation, it is possible to remove the respondent who resigned from public office during the continuation of the impeachment trial. In order to eliminate controversy, it is reasonable to reorganize it into legislation.