탄핵심판제도의 입헌 취지 및 심리 방향성 소고- 노무현 대통령 탄핵심판사건 결정문을 소재로 -

The important system is impeachment system which has been considered as one of the primary regulating systems in the level of the presidential system. Since it is highly difficult to punish high ranking officials based on the ordinary judicial system such as the criminal procedure system and usual disciplinary actions etc. The same can be said about the President. In particular, korean Constitution stipulates the ground for impeachment as ‘the violation of the Constitution or other Acts in the performance of official duties.’ Therefore if such a constitutional provision is to be interpreted on the ground of the grammatical interpretation, the President is obliged to be removed if he or she violate the Constitution or other acts regardless of the seriousness of the violations. However the Korean Constitutional Court developed additional ground - gravity. In particular, the Korean Constitutional Court declared that “An impeachment by the Congress ought to be confirmed only in case that the President violates the Constitution or other Acts gravely enough to rationalize the removal of office of the President.” Thus it is postulate to reason that the Korean Constitutional Court made a judgement taking into consideration of results brought about by decision of approval in terms of balancing of legal interests. It is true that the decision put political vortex quiet those days, but the Korean Constitutional Court faced a great deal of critical arguments as well in that the Constitutional Court was not able to demonstrate the significant points throughout appropriate arguments. Thus as there are incessant disputes over the legitimacy of the Constitutional Adjunction, it is up to the Constitutional Court to supplement its own logic in each cases for the sake of getting over such disputes above and enhancing social agreements. It is necessary to consider that the Constitutional Court has confirmed that there is no difference between each constitutional provisions and that the Constitution and the legislations are different each other in the normative status and effect. Thus the Constitutional Court is required to analyse more logically in interpreting and dealing with the Constitutional Provisions - gravity. In other words, it is appropriate that the Constitutional Court shall deal with differently between the gravity of violation of the Constitutional Provisions and that of the legislative provisions when the Constitutional Court. The Constitutional Court should reason that the violation of the constitutional principles such as the principle of democracy and rule of law mean the grave violation in the case of the former and that it is probable that degree of gravity is can be different among the each behaviors in the case of latter.