Analyzing the Yoon Impeachment Decision with Professor Jang Young-soo

On April 4, South Korea's Constitutional Court unanimously upheld the National Assembly's motion to impeach President Yoon Suk-yeol.

The decision followed a parliamentary vote on December 14 to impeach the president on charges of insurrection related to his declaration of martial law earlier that month.

With the latest ruling, Yoon has been stripped of his presidency and will be required to vacate the presidential residence. A snap presidential election must be held within 60 days to choose his successor.

What were the key disputes in the ruling? Why did the deliberation take so long? And what impact, if any, will the decision have on Yoon's pending criminal trial?

To gain deeper insight, JAPAN Forward recently spoke with Jang Young-soo, a law professor at Korea University. He is widely regarded as one of South Korea's leading experts in constitutional law. Excerpts follow.

*Constitutional Court building in Seoul, South Korea (©Kenji Yoshida)*

On the Constitutional Court Ruling

How do you assess the recent Constitutional Court ruling?

I have some reservations about whether it was the best ruling, but I think it was carefully considered. Many South Koreans feel the country is in the midst of a serious crisis. We've been without a president for nearly four months, and the ongoing political turmoil has led to economic difficulties, strained international relations, and many other challenges. The ruling acknowledges them and reflects the public's widespread concerns.

Why did the deliberation take so long?

President Yoon's constitutional trial concluded on March 25, but no ruling was issued for over a month — an unusually long delay. I believe the holdup stemmed from internal disagreements among the judges over whether the December 3 martial law declaration amounted to insurrection.

Some judges, I believe, felt that Yoon's actions didn't rise to the level of insurrection. However, a split decision — whether 5–3 or 6–2 — would do little to ease the national division. That's likely why the court has been working to reach a unanimous ruling, as it did in the case of former President Park Geun-hye in 2017.

A unanimous verdict would have been unlikely if the question of insurrection had remained the central issue. It appears, therefore, that the court chose to set that aside. Instead, it focused on the unconstitutional actions and procedural flaws surrounding the December 3 martial law declaration.

*South Korean President Yoon Suk-yeol speaks during the final hearing of his impeachment trial on February 25 in Seoul (© Constitutional Court of Korea and Yonhap/Kyodo).*

What do you mean by setting aside the insurrection charges?

During the preparatory session of President Yoon's trial, there was controversy over whether the charge of insurrection was unilaterally removed from the impeachment article and whether the Constitutional Court had accepted that change.

But in reality, there was no clear indication that either the impeachment-seekers or the court formally removed the insurrection charge. On the contrary, the bulk of arguments in the trial continued to focus on the issue of insurrection.

For a president to be removed from office, three conditions must be met. First, the act in question must pertain to the execution of official duties, as stipulated in Article 65(1) of the Constitution. Second, the act must be unconstitutional and/or unlawful. Third, although not explicitly stated in the Constitution, it is well established through precedent that the violation must be grave enough to oust a president from office.

The core issue in the ruling is whether President Yoon's actions were unconstitutional to such a degree that he could no longer remain in office. Notably, this section makes no mention of insurrection. In the end, the judges did not reach a consensus that Yoon's actions constituted the crime of insurrection.

Issues of Insurrection and Martial Law

Why was the court divided over the insurrection charge?

The December 3 martial law differed in many ways from past instances of martial law in South Korea. Historically, martial law involved the mobilization of tens of thousands of troops, resulting in loss of life, destruction of property, the paralysis of state institutions, and, in some cases, military leaders seizing control of the government. That wasn't the case this time.

In President Yoon's case, only about 2,000 to 3,000 troops were mobilized. The decree was lifted just six hours after it was declared, and the president complied with the National Assembly's order to revoke it. There were no casualties, and the only reported property damage was a broken window at the National Assembly.

During the trial, testimonies from Kwak Jong-geun, former commander of the Army's Special Warfare Command, and Hong Jang-won, former first deputy director of the National Intelligence Service, supported the claim of insurrection. Yet, these were countered by testimonies from figures like Kim Hyun-tae, ex-chief of the 707 Special Task Force, and Cho Tae-yong, the director of the National Intelligence Service.

When key testimonies directly contradict each other, the evidence remains inconclusive until further clarity is provided. These issues should have been more thoroughly examined during the trial, but they weren't. I think the judges were divided in their opinions as a result.

Do you think the December 3 martial law amounted to an insurrection?

Let's take a look at South Korea's Criminal Code on the crime of insurrection. To be found guilty, one must have usurped national territory or subverted the constitutional order. The first condition — usurpation of territory — clearly does not apply in this case.

The second condition — subverting the Constitution — requires that the accused aimed to neutralize an existing law, constitution, or state institution through the use of force and incited a riot in the process. Proponents of the insurrection theory argue that President Yoon sent troops to the National Assembly and the National Election Commission with that very intent.

At this point, I don't believe there is sufficient evidence to establish the crime of insurrection. If, however, additional testimony or physical evidence — such as documents explicitly directing the neutralization of the National Assembly — were to emerge, the situation could be viewed very differently.

Related Criminal Charges Against Yoon

Will the Constitutional Court's ruling affect Yoon's criminal trial?

I would say it's highly improbable. Had the Court centered its decision on the charge of insurrection and explicitly ruled that the December 3 martial law constituted insurrection, it could have had a direct or indirect influence. However, since that element was essentially left out of the ruling, its impact on the criminal trial is minimal, at best.

Author: Kenji Yoshida