대통령의 직무 수행 불능 판단의 헌법적 절차 – 미국 헌법 수정 제25조를 중심으로 –

In a presidential system, the president represents the state externally in the capacity of head of state, effectively directs and supervises the executive branch in the capacity of head of executive Branch, and exercises emergency powers or appoints constitutional institutions in the capacity of coordinator of national affairs. In this respect, ensuring the continuity of the presidency is a critical issue for presidential states. In a presidential system, the constitution must provide for reasonable measures to address the situation in which the presidency itself becomes vacant or the president remains in office but is unable to fulfil his or her duties. However, the reasons for vacancy, such as death, resignation, removal from office by impeachment tribunal, judgement, and other reasons, are determined as objective empirical facts, so it is difficult to see the need for a body and procedure to determine vacancy. The issue is an accident, or inability to perform duties. In the case of incapacity, it is necessary to determine separately whether there is a reason for the incapacity and whether it prevents him from performing his duties. Of course, there is no problem if the president voluntarily acknowledges the reason for his or her inability to perform his or her duties. This is because the president’s declaration of inability to perform his or her duties triggers the acting president’s authority, and the president’s intention to return to office terminates the acting president’s authority. The problem arises when the president is in a state where he or she is unable to voluntarily declare himself or herself incapacitated, such as unconsciousness, or when he or she deliberately refuses to declare himself or herself incapacitated. In such cases, there needs to be some process and entity to objectively determine the president’s inability to perform his or her duties. In light of this, this article will examine the 25th Amendment to the U.S. Constitution, which governs presidential incapacity, and draw certain lessons from it. In the case of the United States, the original constitutional provisions on presidential incapacity were incomplete, and this led to a number of complex constitutional issues. In order to solve this problem, the 25th Amendment was enacted through a constitutional amendment, and it has been effectively dealing with controversies related to presidential incapacity. It is necessary for Korea to establish a systematic response to presidential incidents through constitutional amendments, and in this process, Article 25 seems to provide a number of implications for the direction of constitutional amendments.