C. Whether to remove the President from office in
this case
(1) Summary of the violation of law by the President
As confirmed above, the acts of violation of law by the President
at issue in this case can be categorized into the violation of the 'obligation to maintain neutrality' concerning elections owed by public
officials by making statements in support of a particular political party
at press conferences, and the violation of the obligation to protect the
Constitution owed by the President against the principle of rule of
law and Article 72 of the Constitution by expressing unsatisfaction
towards the National Election Commission's decision that the President
violated the election law and making statements denigrating the current
election law and by proposing a confidence referendum.
(2) Gravity of the violation of law
(A) The President violated the 'obligation to maintain neutrality
concerning elections' by making statements supporting a particular
political party, thereby infringing the constitutional request that the
state institution should not affect the process through which the public
freely forms the opinion or distort the competitive relations among
the political parties.
However, such acts by the President do not constitute affirmative
acts of violation against the 'parliamentary system' or 'electoral
system' constituting basic order of free democracy and, accordingly,
it cannot be deemed that the negative impact of the acts in violation
of the Public Officials Election Act upon the constitutional order was
grave, considering that the above acts of violation of the President
were not committed in any affirmative, active or premeditated way
by, for example, attempting to have administrative authority intervene
through state organization. Instead, they took place in a way that
was unaggressive, passive, and incidental, during the course of expressing the president's political belief or policy design in the form of a
response to the question posed by the reporters at the press conference.
It should also be considered that the boundary between the 'expression
of opinion toward politics' constitutionally permissible for the President
who is allowed to do political and party activities and the impermissible
'acts of violating neutrality obligation concerning elections' is blurred
and there has not been any established clear legal interpretation as
to 'in which circumstances it is beyond the scope of political activities
permitted for the President with respect to elections.'
(B) The President's statement and act that causes suspicion to
- 198 -