대통령 권한대행에 관한 몇 가지 쟁점

Abstract

The acting President system intends to prevent the occurrence of the blank of national administration by making the person acting for the President discharge the President's duties on behalf of him. The article 71 of Korea Constitution provides that if the office of the presidency is vacant or the President is unable to perform his duties for any reason, the Prime Minister or the members of the State Council in the order of priority as determined by Act shall act for him. There are some flaws on the acting President system in Korea Constitution. For example, the Korea Constitution does not provide who can decide the beginning of acting President and how long will the period be when the President is unable to perform his duties for any reason. Particularly, the person acting President in Korea Constitution has a serious problem in that he has so weak democratic legitimacy. For that reason many constitutional law scholars insist that the person acting President should exercise President's powers only to maintain status quo. However, the person acting President can exercise all the President's powers according to the situation because the Korea Constitution does not restrain his power and it is necessary for him to perform the President's duties properly in order that the state may normally fulfill its function. I think that is the right interpretation of Korea Constitution. 'The bill of the acting President act' provides for the limitation of the power of the person acting President and his privilege of not being charged with a criminal offense. As described above, however, it is not allowed to limit the power of the person acting President without amendments to the Constitution. Also Korea Constitution endows the President with the privilege of not being charged with a criminal offense. The person acting President can't enjoy the privilege without amending the Constitution. The person acting President should be careful in exercising his powers taking his weak democratic legitimacy into consideration. Probably he will be restricted in reality in exercising his powers.