大統領의 不訴追特權에 관한 몇 가지 문제

The writer stresses the following issues and presents his opinions. ① Article 84 of the Constitution provides "The President shall not be prosecuted with a criminal offense during his tenure of office except for insurrection or treason." and majority scholars construct that courts cannot proceed the criminal procedure about non-insurrection or -treason offences prosecuted before President took his office. The writer does not agree to this construction. His basic grounds are as follows: The majority approach allows President to hold his presidency constitutionally although he was elected through unlawful election campaign which could make his election null and void one if the sentence was made before taking presidency. In addition, however his appeal to the Supreme Court is groundless as his reasons are only based on unfair sentencing which are unpermissible as reasons for appeal to the Supreme court by the Article 383 of the Criminal Act, or forwarded reasons of mistake of law are contravening the firmly established precedents, The Supreme Court cannot proceed the procedure and President can hold his presidency constitutionally. ② President's criminal offense during his tenure prevent the expiration of prescription for public prosecution whether the offence is insurrection or treason, or whether the offence was committed during his tenure or before his taking the office. The extending period of prescription for the prosecution is not necessarily identical with the period of his presidency. The extending period depends whether the retiring President and the successional President are in communal relation. If they are in communal relation, the period of prescription will extend over the successional President's presidency. If they are not in such relation, the extending period will be same with the period of the retiring President. But that period can be contracted according to the surrounding circumstances where similar reasoning of the principle of venire contrefactum proprium are applicable. ③ The obstacle which converts obstacle in fact to obstacle in law largely depends on the President's officiating attitude. Fore the same reason, if the officers who should rectify the President's performances contravening the Constitution and the laws leave the President's unlawful performance without rectification under the influence of the President's attitude, President's disregarding attitude itself of the Constitution and the laws constitute sufficient for impeachment under the Article 65 of the Constitution. So President's offense, especially such as contravention of Act of the Election of Public Officials ot Article 49 of Political Fund Act can be the ground of impeachment. of President.