John Rawls, an American legal philosopher, said: “When things have happened according to the law and fair.

John Rawls, an American legal philosopher, said: “If things are achieved according to the correct and fair procedures and the results, regardless of the content and correct.” The judiciary can also assess incorrectly, but the results of the procedure are accepted and executed, since the procedure is carried out by the constitution and the law in accordance with the fair procedures.

The Constitutional Court is currently carrying out an office proceedings against the President. However, there are only seven articles in the Constitutional Court of the Office for the Office of the Office, and the rest of the procedure requires the laws for criminal proceedings to apply mutatis mutandis.

Therefore, there is a lack of laws and regulations that are suitable for the specificity of the office. So what is the “right and fair procedure” a problem. When the office procedure against the President was first submitted in 2004, the Constitutional Court determined a precedent by determining the issues raised in the course of the process. The second office procedure submitted in 2016 followed this precedent, and the results of the experiment were accepted and carried out without difficulty. If there are parts that are not clear in the law, the precedence cases complement them and precedent in the event of office played a role as precedent.

However, the persistent office in the event of an office cannot follow the precedent. In the previous case, the reason to violate criminal law was, under the reasons for the survey that the president was not subject to criminal prosecution. However, the persistent office of office procedures includes charges for rebellion, which the president can also be prosecuted criminal.

In addition, the president was arrested for rebellion and criminal proceedings. Article 51 of the Constitutional Court Act stipulates that in this case the office procedure can be suspended. Although it is a voluntary rule, it is a principle to suspend the contract for office if an official is charged with the elevation.

The recognition of this problem withdrew the core part of the reason for the survey. There is no clear legal regulations as to whether it is possible to withdraw the reasons for the survey or what the procedure is. In the past precedence, the court divided criminal prosecution with various reasons for the survey of constitutional and legal violations of the approval of the parties to organize problems, and violations of criminal law were also included in the reasons for violations of the law.

However, other criminal violations as civil war or foreign exchange are crimes that cannot be prosecuted by the President. Therefore, the criminal proceedings cannot be submitted, and the office procedure can not assess whether the criminal law is violated or not. Accordingly, it was decided not to determine separately whether criminal law was violated without changing the facts of law enforcement, and the procedure continued. The reason for the survey was not withdrawn.

In the meantime, the law of Criminal Procedure in 2020 was revised according to two office. According to the old law, the interrogation report of the suspect in relation to the report created by other investigative agencies differed. According to the new law, however, the public prosecutor's survey report can also be used as evidence, “limits when the suspect recognizes the content”, just like the report created by other investigative authorities. In the past precedence cases, the admissibility of evidence of records created by investigative agencies was carefully given. In order to prove controversial evidence such as tablet PCs, and important records were confirmed as a witness by summoning the testator. According to the current law, the investigation of evidence in law enforcement must be carried out in a stricter procedure than in the past.

According to media reports, the constitutional court seems to have made a judgment that the public prosecutor can withdraw the reasons for the survey and that the public prosecutor's survey report has the opportunity to testify, even if the testator does not recognize the content. The implementation of the right to proceedings is of the utmost importance when the president is raised if the future of the country is at stake. When creating a new precedent, the Constitutional Court must provide a clear legal basis for procedural issues that differ from previous precedent.

[Lawyer Kang Ilwon (former Constitutional Court justice)]