12·3 비상계엄, 그리고 탄핵 - 헌법해석과 헌법기본이론 관점에서 -

On December 3, 2024, at approximately 22:23, President Yoon Suk-yeol declared martial law in a public address to the nation for the first time in 45 years. On the same day, at around 23:27, the Martial Law Command announced Martial Law Proclamation No. 1. At approximately 01:00 on December 4, the National Assembly unanimously passed a resolution to lift the martial law, with all 190 attending members voting in favor. However, later that same day at around 04:27, President Yoon stated again in a public address that he intended to lift the martial law—without officially doing so. In short, there was neither a formal written proclamation of martial law nor an official announcement of its termination. On December 14, impeachment bill against the president passed with 204 out of 300 National Assembly members voting in favor. There appears to be little dispute that the Constitutional Court’s ruling on the impeachment centers around five key issues: (1) the unconstitutionality of the martial law declaration, (2) issuance of Martial Law Proclamation No. 1, (3) the deployment of military and police to blockade the National Assembly, (4) military raids on the National Election Commission, and (5) orders to arrest politicians, legal professionals, and others. However, from my perspective, if the declaration of martial law is deemed unconstitutional, the remaining four issues do not require further judgment. As for the conditions under which martial law was declared, President Yoon stated that it was to "eradicate pro-North Korean, anti-state forces in one sweep and protect the liberal constitutional order." However, this does not fall under any of the conditions stipulated by the Constitution, which allows for martial law only in cases of war, rebellion, or equivalent national emergencies, and when necessary to respond to military needs or maintain public order. Procedurally, the Constitution requires deliberation by the State Council, countersignatures from relevant ministers, the formal declaration of martial law, and notification to the National Assembly. There is no evidence that any of these procedures were followed. In terms of legal validity, even if both the situational and procedural conditions were met, actions such as a complete suspension of parliamentary activities and raids on the National Election Commission are fundamentally impermissible. Therefore, the December 3 martial law declaration by President Yoon and its subsequent actions must be deemed unconstitutional. According to Constitutional Court precedent, for impeachment to be upheld, there must be a “serious violation of law.” Martial law inherently involves deploying military forces during wartime or national emergencies. Merely using it as a warning to the opposition party or the public constitutes a serious violation of law. The Constitutional Court unanimously (8-0) upheld the impeachment petition and ruled for the removal of the president. Notably, the Court also ruled that the attempted location tracking of a former Supreme Court justice for arrest constituted a serious violation of law that undermines the independence of the judiciary.