탄핵심판절차에 관한 연구- 대통령(박근혜) 탄핵사건 탄핵사유와 증거법을 중심으로 -

Abstract

Based on its experience in dealing with the president’s impeachment in 2004, the Constitutional Court of Korea ruled on the impeachment for the first time in its constitutional history. While maintaining it’s previous principles, a swift decision was also made on the chief executive of state affairs, the president. However, in the course of the impeachment trial, the issue of applying the Criminal Procedure Act, the issue of the evidence law under the Criminal Procedure Act, and the sending of records of cases under investigation and trial were once again controversial. In the case of the Republic of Korea, which has a judicial trial that separates impeachment from judgment, the president can be dismissed, and constitutional or legal malpractice is the reason for impeachment. Both cases against the two presidents were judged as the object of a lawsuit to “Whether to dismiss” the president in consideration of “significant violations of the law.” In this case, there was a violation of the criminal law in the impeachment, but during the trial, the violation of the criminal law was excluded from the issue and was excluded from the actual decision. This is problematic in that there is no “complement” set in relations with the court if there are only criminal violations in the future. It can also be criticized for being politically motivated rather than judicial. In addition, the Criminal Procedure Act is required by law to apply, which can be a problem again in the next impeachment case due to the lack of any constitutional explanation in the application of specific evidence laws. The demandee’s violation of the Constitution is so serious that it may be accepted in conclusion, but a number of issues, such as the issue of impeachment, should be considered in the future when revising the Constitution and revising the law.