Article 84 of the Constitution and the Possibility of a Defendant President

 

One of the biggest political controversies in South Korea today is whether Democratic Party leader Lee Jae-myung’s criminal trial can continue if he is elected president.

Article 84 of the Constitution states:

“The President shall not be subject to criminal prosecution during his tenure, except in cases of insurrection or treason.”

This raises the question: Will ongoing criminal trials be suspended if a defendant becomes president? The legal community is divided on this issue.

Some argue that a president’s criminal trial should automatically be suspended, while others contend that the trial must continue.

This is not merely a matter of legal interpretation but a fundamental issue that could impact South Korea’s judicial system and presidential authority. This article examines the legal debate surrounding Article 84, the associated legal and practical challenges, and possible future scenarios.

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Legal Issues and Expert Opinions

1. The Meaning and Interpretation of Article 84

Article 84 of the Constitution prevents the prosecution of a sitting president for criminal charges, except for insurrection or treason. However, the key issue is the meaning of “prosecution.”

① What is prosecution?

Prosecution refers to the act of formally charging someone with a crime, usually carried out by the prosecution office. However, the Constitution does not explicitly state whether ongoing criminal trials must be suspended.

② The Controversy Over Article 84’s Interpretation

Some legal experts argue that the prohibition on prosecution only prevents new criminal charges from being filed against a sitting president and does not require the suspension of existing trials.

Others believe that the intent of Article 84 is to allow the president to focus on national governance, meaning ongoing trials should also be suspended.

③ Practical Concerns

Lee Jae-myung is currently undergoing trials for violating the Public Official Election Act, perjury, and two other criminal cases. If he becomes president, will these trials continue? Legal experts remain divided.

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The Debate: Should Trials Be Suspended or Continued?

① Argument for Suspending the Trial

Those who argue that criminal trials should be suspended base their reasoning on the following points:

• Ensuring Stable Governance: A sitting president appearing in court as a criminal defendant could harm the country’s dignity and disrupt governance.
• Purpose of Prosecution Ban: If new criminal charges cannot be filed, this suggests that ongoing trials should also be halted.
• Supreme Court Interpretation: Given the ambiguity in the Constitution, the Supreme Court may rule in favor of suspending ongoing trials.

② Argument for Continuing the Trial

Others believe that the criminal trial should proceed even if the defendant becomes president:

• Literal Interpretation of the Constitution: Article 84 only prohibits prosecution, not the continuation of existing trials.
• Principle of Legal Equality: If trials are suspended simply because someone becomes president, it would create legal privileges.
• Avoiding Political Manipulation: If trials are automatically suspended, candidates might deliberately run for office to avoid legal consequences.

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Practical Considerations and the Role of the Supreme Court

There is no clear consensus on the interpretation of Article 84. The legal and academic communities are split between suspending trials and allowing them to continue.

Ultimately, the Supreme Court will have to decide.

• If the Court rules that ongoing trials fall under the category of prosecution, Lee Jae-myung’s trials will be suspended.
• If the Court rules that criminal trials are not covered by the prosecution ban, he will have to continue facing trial, even as president.

Practically speaking, however, it would be difficult for the prosecution to actively pursue charges against a sitting president. As part of the executive branch, the prosecution may find it challenging to maintain an aggressive stance against its highest authority.

For this reason, many analysts believe that ongoing trials will likely be suspended in practice.

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Final Thoughts: Legal vs. Political Realities

If Lee Jae-myung is elected president, whether his criminal trials continue will depend on how Article 84 is interpreted.

Beyond legal arguments, political and practical considerations will play a major role. Given the challenges of prosecuting a sitting president, it is likely that his trials will be suspended.

However, this issue could have long-term consequences for South Korea’s legal and political systems. The Constitutional Court or the Supreme Court may eventually clarify the law, and the National Assembly could propose legislative changes to address this constitutional ambiguity.

The future interpretation of the presidential immunity clause will shape the nation’s judicial and political landscape for years to come.