『검수완박』법안, 대통령거부권의 행사․불행사와『Nemo iudex』법리의 충돌가능성

This essay sets the initial form of the bill on the complete deprivation of investigation power of the prosecution agency(「Complete Deprivation」 bill) as 「Hypothetical Facts」. According to 「Hypothetical Facts」, the proposition: 『Justice should not only be done, but should manifestly and undoubtedly be seen to be done』 can never be satisfied at all. This article discusses how to evaluate the President’s actions regarding the bill in relation to the proposition 『Nemo iudex』. The test of bias that the author adopts is 「possibility」 test. And the perspective of the judging subject is not that of a court, but that of a 「a fair-minded and informed observer」. According to the 「Hypothetical Facts」, the President sets up several obstacles, through the 「Complete Deprivation」 bill, for actions that could make him the subject of investigation. This act of the President is almost no different from 「actual bias」 or is a highly likely act of 「appearance bias」. The President should not avoid exercising his veto on the 「Complete Deprivation」 bill under the pretext of passed law through the National Assembly. The President, faithful to the proposition 『Nemo iudex』, must return the bill to the National Assembly on the grounds that he is not eligible to the bill. In determining the unconstitutionality of a 「bill destructive to the principle of separation of powers」, the quorum required should be a (bare) majority. In the Constitution, the weighted majority vote (six or more judges) required to decide on unconstitutional laws establishes the National Assembly as the interpreter of the Constitution, placing the National Assembly in a higher position than the President, despite the equal relationship between the President and the National Assembly. Agreement on the interpretation of the Constitution can be reached by a simple majority vote.