공론화된 대통령후보에 관한 범죄혐의와 불소추특권에 기인하는 대통령 취임 후의 지위

The Article 84 of the Constitution providing the privilege against prosecution has the characteristics of both prerogative and partial self-pardon. According to the generally accepted literal interpretation, the privilege accompanies the following effects. The crime/crimes committed and subsequently investigated, including even the heavily wrangling over suspicion/suspicions during the candidacy for presidential election is/are prohibited to prosecute the candidate after the inauguration as president. The trial/trials is/are suspended automatically, including even the one/ones only waiting for sentence in the last instance and most likely to lose his presidency with the sentence. Due to such traits of privilege against prosecution, the privilege can be easily and heavily abused per se, and can be the motive of deepening fraudulent and corrupt election in proportion to his inward exactitude with such election, for a candidate’s stance. The privilege against prosecution is a prerogative. However, the prerogative is conferred to the ruler on the premise that it ought to be used for the people’s good. Because of this premise, abused privilege is the use of privilege against people’s good, and should be strictly controlled against the abuse. The writer proposes the several means for preventing danger of abuse, viz. restrictive interpretation of constitution, ex ante blocking against danger of abuse, ex ante disclamation of privilege in advance of election day. President must be the person elected legitimately. In this sense, being elected not through fraudulent and corrupt, but through legitimate election is the qualification of presidential privilege. Qualification element should be scrutinized and prosecuted at any time during the presidential term of office. Non prosecution against president for the reason of privilege is just but an active allowance of the rule by fake or sham president. In this respect, the writer proposes the restrictive interpretation translating the election into the legitimate election for preventing the rule by fake or sham president. The writer especially emphasizes the notion of 「appeal to heaven」 by John Locke in the logical development.