The Supreme Court's en banc panel on 1st overturned the lower court's ruling that found Lee Jae-myung, the Democratic Party of Korea presidential candidate, not guilty of charges related to violations of the Public Official Election Act and sent the case back with a guilty intention, which is expected to fuel ongoing discussions in the political arena about his 'presidential eligibility.'
Since the leading presidential candidate, Lee, is being interpreted differently by the Democratic Party of Korea and the People Power Party regarding the extent to which criminal prosecution may be avoided if he is elected president, controversy continues.
Some expected the Supreme Court to provide an interpretation of Article 84 of the Constitution along with the ruling on the appeal, but there was no mention of that provision.
Spokesperson Cho Seung-rae met with reporters immediately after the briefing on the Supreme Court ruling and responded to a question, asking, 'If Lee is elected president and completes the election, will he be tried?' He noted, 'The general theory among constitutional scholars is that prosecution is suspended for individuals holding the presidential office,' adding that 'prosecution includes not only indictment but also the trial process.'
Article 84 of the Constitution states that 'the president shall not be subject to criminal prosecution during their term, except in cases of treason or foreign exchange offenses.' There is intense debate over whether 'prosecution' refers only to the prosecution initiated by the prosecution or whether it also includes ongoing trials.
The Democratic Party of Korea asserts that ongoing trials are included in the prosecution.
Spokesperson Cho stated, 'If the Supreme Court disregards the general theory of constitutional academia and makes an absurd attempt, it should be stopped through constitutional and legislative procedures,' and said, 'This is a country of the people, not a country of judges or prosecutors. Even if there are faulty attempts, they will not succeed.'
On the other hand, the People Power Party fundamentally believes that prosecution in criminal matters refers to indictment.
Kwon Young-se, chairperson of the People Power Party's emergency countermeasures committee, met with reporters shortly after a press conference and rebutted a question regarding the Democratic Party of Korea's claim that 'if Lee is elected president, the trial will be suspended,' stating, 'The Democratic Party of Korea is making an absurd interpretation.'
Chairperson Kwon stated, 'In criminal prosecution, prosecution refers to indictment,' and added, 'As we have seen in the impeachment and trial procedures related to former President Yoon Suk-yeol, prosecution does not include the trial.'
If Lee receives a penalty of over 1 million won for violating the Public Official Election Act in the remand trial, his eligibility to run for office will be revoked. Therefore, if he continues to run, controversy over his presidential candidacy is expected to escalate.
Legal circles believe that there is unlikely to be new evidence or facts in a new election law violation case; thus, the Seoul High Court is expected to judge on the premise of guilt based on the Supreme Court's decision.
A source in the legal community stated, 'The issue is sentencing. Given the Supreme Court's en banc decision, it concluded that two charges were guilty, so the possibility of being sentenced to less than 1 million won is low.'
The sentencing situation ultimately leads to a controversy over Lee's presidential eligibility. Han Dong-hoon, a presidential candidate from the People Power Party, who visited Daegu's Seomun Market that day, stated, 'I raised the issue of Article 84 of the Constitution myself,' and emphasized, 'Our Constitution clearly distinguishes between prosecution and trial. It says that prosecution can be suspended, but it does not say that the trial can be suspended.'
Han asserted, 'If the Supreme Court renders a guilty intention ruling and before the remand ruling is completed, if one becomes president, can it be reasonably accepted that the trial will be suspended and one continues to act as president?' He stressed, 'Therefore, it should be concluded not by the court's ruling but through the people's ruling.'
In response to this, voices in the political and legal circles are calling for the judiciary to provide an interpretation regarding the president's immunity from prosecution.
Another source in the legal community stated, 'If Lee is elected president as is, a remand trial or an appeal thereof will take place, which means the interpretation issue of Article 84 of the Constitution will still remain,' adding, 'There is also a possibility of raising a dispute over jurisdiction against the court regarding the question of whether the trial can proceed while holding presidential status.'