Professor Kim Seontaeck of Korea University Claimed in a Paper Two Years Ago That Impeachment of Judges Involved in Judicial Scandal Is Inevitable

Constitutional Court, Jaedong, Jongno-gu, Seoul.
Photo by Yonhap News

[Asia Economy Reporter Choi Seok-jin] Amid sharply contrasting views on the impeachment motion against Im Seong-geun, Chief Judge of the Busan High Court, with some calling it an "inevitable measure for judicial reform" and others labeling it as "judiciary taming," a research paper that thoroughly examines the possibility of impeaching judges involved in the 'judicial scandal' has drawn attention.

According to the legal community on the 2nd, Professor Kim Seon-taek of Korea University Law School, an authority in constitutional adjudication, together with Research Professor Yoon Jeong-in of Korea University Law Research Institute, published a paper titled "Requirements and Procedures for Judge Impeachment ? Regarding the Judicial Scandal Incident" in February 2019, when the judicial scandal issue was publicized.

Two Failed Judge Impeachment Attempts in Korea... In the U.S., 8 out of 15 Impeachments by 2009 Were Judges

In the paper, Professor Kim introduced cases of judge impeachment in Korea and abroad.

He stated, "In Korea, there have been two attempts to impeach judges in our history, but neither resulted in impeachment approval," and introduced, "The first case was against Chief Justice Yoo Tae-heung in 1985, and the second was against Justice Shin Young-chul in 2009."

Chief Justice Yoo was accused of abusing personnel authority by forcibly transferring judges who wrote critical opinions on the judicial personnel system or imposing unfavorable transfers on judges who made rulings against the regime's wishes, thereby infringing on judicial independence. In October 1985, an impeachment motion was submitted to the National Assembly by 102 opposition lawmakers but was rejected in the vote, allowing Yoo to avoid impeachment and complete his term the following year.

Justice Shin, while serving as Chief Judge of the Seoul Central District Court in 2008, was involved in the controversial candlelight protests case by assigning the case to a specific panel ("stacking"), intervening in trials through emails and phone calls, indirectly conveying the Chief Justice's intentions, and pressuring judges. An impeachment motion was submitted to the National Assembly in November 2009 by 105 opposition lawmakers but was discarded after missing the legislative deadline due to ruling party opposition. Shin completed his term and retired in 2015.

After introducing these cases, Professor Kim pointed out, "Given this situation, reviewing what legal responsibilities should be imposed on judges involved in the current judicial scandal is essential not only for appropriately resolving the immediate issue but also for preventing similar incidents in the future."

Professor Kim explained, "From a comparative law perspective, the scope of public officials subject to impeachment varies depending on each country's constitutional history, power structure, and legislative background," citing examples such as the U.S., which broadly defines impeachment targets as 'the President, Vice President, and all civil officers of the United States,' Germany, which limits it to 'the Federal President and judges,' and Japan, which restricts it to just judges."

He added, "Despite these legislative differences regarding the scope of impeachment targets, a certain range of judges is commonly subject to impeachment."

Furthermore, Professor Kim stated, "The purpose of the impeachment system?to protect the constitutional order and public trust in public office?applies equally to judges who constitute the judiciary," and argued, "Therefore, if a judge is proven to have violated the constitution or laws in relation to their duties to the extent that maintaining their position is impossible, or if they have completely lost public trust, making their rulings and judicial decisions unacceptable to the public, dismissal through impeachment should be possible."

He introduced, "In the U.S., which defines 'the President, Vice President, and all civil officers of the United States' as impeachment targets, out of 19 federal impeachments, only two were presidents, while 15 were federal judges, of whom eight were impeached and removed."

He added, "Compared to the President, a unitary constitutional institution with strong democratic legitimacy from the people, impeachment of judges is relatively a routine procedure. Although only eight judges have been impeached since 1803, the grounds for impeachment have been recognized even in less severe cases than those for presidents."

"Judicial Independence Is for Fair Trials"... "Judge Impeachment Does Not Violate Judicial Independence"

Professor Kim also rebutted claims that judge impeachment infringes on judicial independence.

He pointed out, "Misunderstanding judicial independence as meaning the judiciary should be free from any oversight or checks by other state organs, and thus arguing that all decisions made in courts, including judicial administration beyond adjudication, must be absolutely free from external criticism or control, is a misguided argument."

He emphasized, "Since the principle of separation of powers implies mutual control (checks and balances) among power organs, not just separation, oversight and control of the judiciary are necessary and judicial independence should be understood in harmony with that."

Professor Kim also argued, "Judicial independence and the security of judges' status, as part of it, are means to ensure fair trials," and "The security of judges' status should be institutionalized in a way that helps the proper exercise of judicial functions entrusted by the sovereign people, not to guarantee judges' status under any circumstances."

He explained the constitutional basis for the impeachment system.

He said, "Generally, public officials can be disciplined through internal organizational rules or dismissed for legal reasons. For high-ranking officials whose responsibility is difficult to address through disciplinary procedures or who cannot be dismissed due to enhanced status protection, the constitution provides for impeachment."

He added, "Especially for judges, according to Article 106 of the Constitution, they can only be dismissed by impeachment or a sentence of imprisonment or higher. Disciplinary actions can only impose suspension, salary reduction, or other unfavorable measures, and the highest disciplinary penalty under the Judges Disciplinary Act is a one-year suspension. Therefore, aside from dismissal through criminal sentencing, impeachment is the only legal procedure to remove judges guilty of serious misconduct."

Professor Kim stressed, "Therefore, sanctions excluding such unfit individuals from the judiciary, considering the importance of the judiciary's functions and public trust, do not undermine judicial independence but rather can establish true judicial independence. This is not only desirable but essential."

Following an internal investigation ordered by Chief Justice Kim Myung-soo, among 13 judges implicated in the judicial scandal referred to the Supreme Court Disciplinary Committee, two received six-month suspensions, one received a three-month suspension, four were demoted, and one was reprimanded. Of the remaining five, two were dismissed without punishment, and three were cleared. Professor Kim pointed out, "This shows the limitations of internal disciplinary procedures and the inevitability of impeachment as an 'external disciplinary' measure."

He also noted that a 2015 research series published by the Supreme Court Judicial Policy Research Institute, titled "A Study on Disciplinary Systems for Judges in Various Countries," states that "sanctions excluding unfit judges through impeachment do not undermine judicial independence but rather can establish true judicial independence, making it desirable and essential."

Grounds for Judge Impeachment... Cases Where Judicial Independence Is Undermined or Judges Are Subjected to Disadvantageous Status Measures

Meanwhile, Professor Kim explained the meaning of "violation of the constitution or laws in the execution of duties," as stipulated in Article 65(1) of the Constitution and Article 48 of the Constitutional Court Act.

He prefaced, "In the case of judge impeachment, Articles 103 and 106 of the Constitution can be primarily considered."

Article 103 stipulates judicial independence in adjudication, stating, "Judges shall be independent in their decisions according to their conscience in accordance with the Constitution and laws," and Article 106(1) states, "Judges shall not be dismissed except by impeachment or a sentence of imprisonment or higher, and shall not be subject to suspension, salary reduction, or other unfavorable measures except by disciplinary action," prescribing strict status protection for judges.

Professor Kim explained, "If a judge interferes with or pressures another judge's adjudication in the execution of their duties, violating judicial independence, it would constitute a violation of Article 103. If a judge abuses judicial administrative power or causes disadvantageous status measures to other judges through means not prescribed by the Constitution, it could also violate Article 106."

He added, "Of course, if a criminal offense is established, it naturally falls under legal violations constituting grounds for impeachment, but legal violations as grounds for impeachment do not necessarily have to coincide with criminal elements. Ultimately, legal violations as grounds for judge impeachment are more limited and severe than disciplinary grounds but can be understood within a scope that does not require criminal conviction."

"Judge Impeachment Is a Way to Normalize the Judiciary"

At the end of the paper, Professor Kim concluded, based on the "Special Investigation Team Report on Abuse of Judicial Administrative Power" written in May 2018, which pointed out "acts infringing on judges' fundamental rights," and the second regular meeting of the National Judges' Representatives in November 2018, where 114 representatives stated "judge impeachment is necessary," that "the illegal or improper facts revealed in the judicial scandal are sufficient grounds for impeachment based solely on the findings of the court's internal investigation team, which aligns with common sense."

At that time, judges' representatives agreed that acts such as court administration officials discussing specific cases with government officials, drafting advisory opinions, contacting trial panels to request specific rulings, and suggesting trial procedures constituted serious constitutional violations warranting consideration of impeachment alongside disciplinary procedures.

Finally, Professor Kim emphasized, "Judge impeachment does not undermine judicial independence but rather, in the long run, restores public trust in the judiciary, preserves the judiciary's integrity, and normalizes the judicial system."

Chief Judge Im was prosecuted for allegedly improperly intervening in trials related to defamation charges against Kato Tatsuya, former Seoul bureau chief of Sankei Shimbun, who wrote articles about former President Park Geun-hye's '7-hour Sewol ferry incident whereabouts,' while serving as Senior Chief Judge of the Seoul Central District Court's Criminal Division in 2015, in collusion with then Court Administration Director Lim Jong-heon.

The first-instance court acquitted Chief Judge Im of abuse of authority, reasoning that the acts in question did not fall within the general authority of the Senior Chief Judge of the Seoul Central District Court's Criminal Division. However, the court noted in its ruling, "The defendant's involvement in each trial in this case, using his position or personal connections, constitutes unconstitutional acts infringing judicial independence," pointing out the unconstitutionality.

On the previous day, 161 lawmakers from the Democratic Party, Justice Party, Open Democratic Party, and Basic Income Party, including Democratic Party lawmaker Lee Tan-hee, submitted an impeachment motion against Chief Judge Im to the National Assembly. The opposition parties strongly opposed the ruling party's push for impeachment, arguing that regardless of whether Im's trial intervention constitutes grounds for impeachment, the ruling party's move is a form of 'judiciary taming' in retaliation for rulings related to Prosecutor General Yoon Seok-youl's disciplinary case, the prison sentence of former Justice Minister Cho Kuk's wife, Professor Jeong Gyeong-sim of Dongyang University, and the prison sentence of Open Democratic Party leader Choi Kang-wook.

This content was produced with the assistance of AI translation services.